Pampu v. City of Detroit. Garcia Same
| Decision Date | 07 October 1946 |
| Docket Number | 6.,Nos. 5,s. 5 |
| Citation | 24 N.W.2d 588,315 Mich. 618 |
| Parties | PAMPU v. CITY OF DETROIT. GARCIA SAME. SAME. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Theodore J. Richter, judge.
Two actions, one by John Pampu against the City of Detroit (Detroit Street Railways), a municipal corporation, and the other by Rudolph Garcia, administrator of the estate of Esther B. Garcia, deceased, against the City of Detroit (Detroit Street Railways), a municipal corporation. From an adverse judgment in each case, defendant appeals.
Judgments affirmed.
Before the Entire Bench.
Rodney Baxter and Ralph L. Hayes, both of Detroit (A. Albert Bonczak, of Detroit, of counsel), for appellant.
Maxwell I. Silverstein and Nathan D. Rosin, both of Detroit (Vandeveer & Haggerty, of Detroit, of counsel), for appellees.
On October 21, 1940, about 6:10 p.m., while it was still light out but with darkness fast approaching, John Pampu, plaintiff in the one case, and Esther B. Garcia, plaintiff's decedent in the companion case, started to cross from the south to the north side of Ferndale Avenue at the east intersection of Ferndale, Dix and Canterbury Avenues near Westlawn Avenue in the city of Dearborn, Michigan. For clarity, we find it necessary to attach a map to this opinion. It will be seen that Dix Avenue is 107 feet wide south of the intersection and slightly over 80 feet wide north of the intersection, and it forms an approximate 35 degree angle with Ferndale Avenue which is 80 feet wide on the west and 120 feet wide on the east where plaintiff attempted to cross. Canterbury Avenue runs north and south and apparently ends at Dix Avenue into which it runs. Westlawn is one block east of Canterbury and also runs north and south and seems to end at Ferndale Avenue. It projected across to the north side, due to the peculiar angle of the intersection, Westlawn is but a short distance east of Dix Avenue. East of the intersection, Ferndale Avenue is so divided that starting from the south there is a 23 foot width of concrete road, then a 55 foot center strip of dirt, and finally a 42 foot concrete road used for both easterly and westerly traffic. The dirt strip ends shortly before the southeast corner of Ferndale and Dix Avenues. The street car tracks are laid in the dirt strip so as to curve at the intersection from the north edge of the strip to the center of the strip at a point beyond Westlawn Avenue. At a point west of Westlawn, however, they extend across Dix Avenue down the center of Ferndale Avenue.
According to the testimony of Pampu, he and decedent started to cross Ferndale at a point somewhat west of the gas station on the southwest corner of Westlawn and Ferndale, in order to reach the northeast corner of Ferndale and Dix Avenues, almost opposite. When he reached the car tracks he observed the traffic light at the southeasterly part of the island on the north side of Dix Avenue. At the time of crossing, according to his testimony, automobiles going west were halted because of the red traffic light, which he had noticed. At the point of his crossing the street car tracks had almost converged with the concrete pavement, so that there was but a foot or two of dirt between the northerly most rail and the concrete. This is referred to in the record as the ‘Devil's strip.’ Pampu testified that when he was about two feet from the south rail of the eastbound track, he looked to the right and saw one of the cars of the railway system of the city of Detroit approaching from the east and about 250 to 300 feet away at the rate of about 20 miles per hour. He negotiated the 17 feet to the last rail in about four or five seconds, and then hesitated about five seconds at the point marked ‘X’ on the map, with his right foot inside the northerly most rail and his left foot forward over the rail, while he watched an automobile making a right turn from Dix Avenue on to Ferndale Avenue. The automobile as it proceeded was heading straight towards him. Pampu testified that he did not look again at the street car during this time as he thought it would stop further back near Westlawn where the dirt strip between the concrete and track was wider, so that the passengers could alight there and not be endangered by alighting directly on the highway. He testified that, although there was no designated stop, the street car usually stopped near Westlawn. Pampu further testified that while hesitating and standing in the Devil's strip, he was watching an automobile making a right turn directly in front of him, and that the street car struck Mrs. Garcia, who stood a few feet to the right and beyond him, and that when she screamed, he turned his head in that direction and then was struck by the street car and thrown on to the fender of the automobile making the right turn which then carried him about 30 feet. Pampu also testified that the street car did not ring a warning gong, and that he not only believed the car would stop further back to...
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