Potter v. Felician Sisters Home for Orphans

• Decision Date: 01 September 1937
• Docket Number: No. 43.,43.
• Citation: Potter v. Felician Sisters Home for Orphans, 281 Mich. 101, 274 N.W. 725 (Mich. 1937)
• Parties: POTTER v. FELICIAN SISTERS HOME FOR ORPHANS, DETROIT, MICH.
• Court: Michigan Supreme Court

281 Mich. 101

274 N.W. 725

POTTER

v.FELICIAN SISTERS HOME FOR ORPHANS, DETROIT, MICH.

No. 43.

Supreme Court of Michigan.

Sept. 1, 1937.

Action by Gerald Potter, administrator de bonis non of the estate of William Potter, against the Felician Sisters Home for Orphans, Detroit, Michigan. Judgment for plaintiff, and defendant appeals.

Affirmed. Appeal from Circuit Court, Wayne County; Robert M. Toms, Judge.

Argued before the Entire Bench.

Wm. Henry Gallagher, of Detroit (Frank Fitzgerald, of Detroit, of counsel), for appellant.

Clark C. Seely, of Roseville, for appellee.

SHARPE, Justice.

At about 11 o'clock in the forenoon of August 22, 1934, plaintiff's decedent was riding in his own Packard automobile, which was being driven in a northerly direction on John R road by his wife. At the same time a Ford V-8 truck loaded with gravel and owned by defendant was being driven by its employee in an easterly direction on the Fifteen Mile road approaching the intersection of John R road. The cars collided, resulting in severe injuries to plaintiff's decedent from which he later died. The driver of the truck was instantly killed, and when the cause came on for trial the wife of plaintiff's decedent was also dead. The only eyewitness who testified was an attendant at the gas station on the southeast corner of the intersection who was sitting in his car off the highway at the time of the accident. He testified that both cars approached the intersection traveling about 35 miles per hour; that neither car slackened its speed; that defendant's truck was driven into John R road without stopping and crashed into plaintiff's decedent's car; that just before the crash, the Packard car swerved somewhat to the right. John R road is a through highway and at the time of the accident was designated by appropriate signs. On the Fifteen Mile road about 50 feet west of the intersection was a state highway sign reading ‘stop’ and about 200 feet west of the intersection was another state highway sign reading ‘slow.’ Both highways are paved, the day was clear and bright, the pavement dry, the surrounding territory flat and free from obstructions, so that both drivers had a clear view of the intersection and of the intersecting roads for some distance in each direction.

At the close of plaintiff's case, defendant moved for a judgment of no cause of action upon the theory that had Mrs. Potter, the driver of the car, made suitable observation of approaching cars she would have observed the Ford truck about the same distance from the intersection as her own car, and approaching at about the same rate of speed without at any time giving any indication that it was going to stop before entering the intersection to accord her the right of way; and that because of her failure to make such observations and to act accordingly, she was guilty of such contributory negligence as precludes recovery in this cause. The trial court denied defendant's motion and later awarded plaintiff a judgment in the sum of $6,000.

Defendant appeals and contends that the case at bar is governed by Marciniak v. Sundeen, 278 Mich. 407, 270 N.W. 729, 730, where we said: ‘Plaintiff's decedent had a right to assume that defendant Sundeen would obey the statute requiring him to come to a full stop before entering Hoover road, a through highway (1 C.L.1929, § 4715, and Hazzard v. Heneveld, 263 Mich. 253, 248 N.W. 612); but, notwithstanding the fact that Marciniak had the right of way (1 C.L.1929, § 4712), he was not entitled to proceed heedlessly and without taking any precaution for the safety of himself and others riding in his automobile. Smith v. Wassink, 262 Mich. 639, 643, 247 N.W. 766.'

In this cause there is no claim that the driver of the defendant's truck was not negligent in failing to stop before entering the intersection of John R road and Fifteen Mile road. Failure to stop at a through highway is negligence. See Hilliker v. Nelson, 269 Mich. 359, 257 N.W. 717;Pulford v. Mouw, 279 Mich. 376, 272 N.W. 713;Arnold v. Krug, 279 Mich. 702, 273 N.W. 322;Leader v. Straver, 278 Mich. 234, 270 N.W. 280.

The facts are not in dispute, and if plaintiff is to recover, it must be shown that the driver of plaintiff's decedent's car was free from contributory negligence. In Pulford v. Mouw, 279 Mich. 376, 272 N.W. 713, 714, we said:

‘One is not negligent unless he fails to exercise that degree of reasonable care that would be exercised by a person of ordinary prudence...