Saunders v. Joseph, s. 31

• Decision Date: 11 February 1942
• Docket Number: Nos. 31,32.,s. 31
• Citation: 300 Mich. 479,2 N.W.2d 471
• Parties: SAUNDERS v. JOSEPH et al. (two cases).
• Court: Michigan Supreme Court

300 Mich. 479

2 N.W.2d 471

SAUNDERS

v.JOSEPH et al. (two cases).

Nos. 31, 32.

Supreme Court of Michigan.

Feb. 11, 1942.

Suit by Fred Saunders against John Joseph and another to recover for personal injuries and for damages to automobile arising out of automobile collision and for hospital, medical, nursing and other expenses resulting from his wife's injuries, and suit by Eveline Saunders against John Joseph and another to recover for personal injuries sustained by her in the same collision. Judgments for the plaintiffs, and the defendants appeal.

Judgments affirmed.

Appeal from Circuit Court, Tuscola County; Louis C. Cramton, judge.

Before the Entire Bench, except WIEST, J.

M. W. Bush, of Saginaw, and Carl H. Smith, of Bay City (George J. Cooper, of Detroit, of counsel), for appellants.

Robert E. Plunkett, of Detroit, and Bates Wills, of Caro, for appellees.

STARR, Justice.

These two cases, consolidated for trial and appeal, involve an automobile accident occurring about 5:15 o'clock on the afternoon of December 26, 1939, on Melbourne street just north of the intersection of Melbourne and Berkeley streets in the city of Flint.

Such intersection was located in a residential neighborhood. Both streets were paved, were 26 feet wide from curb to curb, and were of equal importance, neither being a through street. Melbourne street extended north and south, and Berkeley street extended east and west. The curbs at the four corners of the intersection were curved, having a 10 or 12-foot radius, so that both streets were open and bell-shaped at the intersection. The day was clear; the streets were dry; and, though it was ‘getting dusk,’ each driver could see the other approaching the intersection.

Plaintiff Fred Saunders, a resident of Flint and familiar with the intersection, accompanied by his wife, plaintiff Eveline Saunders, was driving his Ford sedan north on Melbourne street and was approaching the intersection. They were on their way to visit their married daughter who lived a few blocks from where the accident occurred. Saunders was driving at a speed which he estimated at 15 to 20 miles, and which defendant William Joseph estimated at 35 to 40 miles, an hour.

Defendant William Joseph, 22 years old, accompanied by another young man, was driving a 1933 Chevrolet car, owned by his father, defendant John Joseph, west on Berkeley street and was approaching the intersection with Melbourne street at a speed which he estimated at 25 to 28 miles, and which plaintiff Fred Saunders estimated at 30 to 40 miles, an hour. Defendant driver was on his way ‘to pick up my girl friend who lived on Berkeley about the third house west of Melbourne.'

A collision occurred on Melbourne street about ‘five or 10’ feet north of the north line of the intersection. Defendant driver had turned off Berkeley street to the right (north) on Melbourne street and struck plaintiff Saunders' car at about the center on the right side. Plaintiff Fred Saunders sustained minor personal injuries and some damage to his car. Plaintiff Eveline Saunders sustained severe and permanent injuries, was confined in the hospital and at home for several months, and at the time of trial, about 17 months after the accident, had only limited use of her left arm, leg, and side.

Plaintiff Fred Saunders began suit to recover for his personal injuries, for damages to his car, and for hospital, medical, nursing, and other expenses resulting from his wife's injuries. Plaintiff Eveline Saunders began suit to recover for her personal injuries. Both plaintiffs alleged negligence on the part of defendant driver, William Joseph. Defendants filed answers denying negligence and charging Fred Saunders, as plaintiff in his case and as his wife's driver in her case, with contributory negligence. The cases were consolidated and tried before a jury. At the conclusion of plaintiffs' proofs defendants moved for directed verdicts, which motions were denied. Defendants did not renew their motions for directed verdicts at the conclusion of their proofs. The jury returned verdict of $2,328.78 for plaintiff Fred Saunders, and verdict of $2,000 for plaintiff Eveline Saunders. Judgments were entered on such verdicts. Defendants filed motion in each case for judgment notwithstanding the verdict and also motions for new trials. Such motions were denied, and defendants appeal.

No question is raised as to defendant driver's negligence. Defendants' counsel state in their brief: ‘The case is in the supreme court for review of the denial of defendants' motion for judgment notwithstanding the verdict. The motion for a new trial has been abandoned.'

The statement of questions involved presents for review only one question: Was Fred Saunders, as plaintiff in his case and as driver for his wife, Eveline Saunders, in her case, guilty of contributory negligence as a matter of law?

Defendants contend that the testimony of plaintiff Fred Saunders establishes his contributory negligence. Plaintiff driver testified that, when he was about 50 feet from the intersection, he looked to his right (east) on Berkeley street and saw defendants' car approaching at a distance of ‘about 100 to 150 feet’ from the intersection; that he judged defendants' car was going 30 to 40 miles an hour; that he continued to watch defendants' car until he (plaintiff driver) had crossed the intersection; that he thought he could get across the intersection safely; that he continued at a speed of 15 to 20 miles an hour; that, when he reached the center of the intersection, defendants' car was about 50 feet away; and that, when he reached the north line of the intersection, defendants' car was about 10 to 15 feet away. Plaintiff Fred Saunders further testified:

‘Q. And you proceeded on across? A. I proceeded on across. I figured I was going to clear him from hitting me.

‘Q. Did it (defendants' car) slacken its speed any after that? A. No. * * *

‘Q. Where was the front of your car at the time of the impact? A. The front of the car must have been at least six or 10 feet the other side (north) of the intersection.

‘Q. Across the north curb of the north line of Berkeley if extended? A. Yes, sir. * * *

‘After the accident the car that struck me was stopped headed the same way I was going five or 10 feet or so from the corner. His (defendant driver's) whole car was north of the intersection and facting north * * * on Melbourne.'

On cross-examination plaintiff Fred Saunders further testified:

‘Q. You were around 50 feet back (from Berkeley street) when you first looked to the right? A. Yes. * * *

Q. Did you see a car coming at that time? A. Yes.

Q. And how far away from the east curbline of Melbourne street to the east, was that car that you saw coming down Berkeley street? A. Down as far as the two little trees there, the first tree I saw him.

‘Q. Tell me what that would be in feet? A. Be around about 150 ffet I imagine. * * *

Q. How fast was he traveling there as you saw him coming towards you? A. * * * I couldn't determine but I figured he was going somewhere between 30 and 40 miles an hour. * * *

‘Q. You kept right on going? A. Yes.

‘Q. And did you keep right on watching? A. I was watching him all the time. I didn't notice the speed until I come across the intersection, then I noticed. * * *

‘Q. Did he slacken his speed at any time as he traveled that 150 feet? A. No.

‘Q. Did you slacken your speed at any time as you traveled the balance of that 50 feet and reached the south curbline on Berkeley? A. No.

‘Q. How far away from the center point of that intersection was this car that you saw coming from the right when you got up to this south curbline on Berkeley street? A. I should say about 100 feet back, or more * * *

‘Q. With the brakes you had on your car that day in what distance could you stop your car if you put them on going at a speed from 15 to 20 miles an hour? A. I could stop within 10 feet I suppose, between 10 and 20 feet. * * *

‘Q. Did you make any effort to stop your car or slacken your speed when you got to the south line of Berkeley street? A. No. * * *

‘Q. * * * How far did you get across Berkeley street when you got hit? A. I was across the intersection.

‘Q. Well, were you completely out of Berkeley street? A. Yes. Maybe just the end of the car, the bumper might be there, but I was out of the intersection myself.

‘Q. You were out of there entirely? A. Yes, sir.

‘Q. With the whole length of your car. Did you notice this automobile (defendants') turning there right as it got pretty close to you? A. No.

‘Q. Did it turn to the right at any time? A. Yes.

‘Q. Where was it as it turned to the right? A. Right at the corner, just before it hit me; came right after me. * * *

‘Q. Why didn't you stop your car? A. Well, I was afraid of getting killed if I stopped probably. I figured I was out of the intersection. * * *

‘Q. You tell me you didn't figure you had the right of way because that was the most traveled street there? A. Yes, I figured I had the right of way because I figured I was out of the intersection before he reached there.'

On redirect examination plaintiff Fred Saunders testified:

‘Q. There was nothing there between you and he to obstruct his view of you? A. Not a thing.

‘Q. And I will ask you whether or not you assumed he would slacken his speed to permit you to cross? A. That is what I assumed he would do. * * *

‘Q. At the time of the actual impact you think practically the entire length of your car was north of that curbline? A. Yes. * * *

‘If he (defendant driver) had gone straight ahead on his own side of the street he might have just skinned my bumper. He didn't slacken his speed at any time that I observed.'

Defendant driver, William Joseph, testified that he did not look to his left until within 10 or 15 feet from the intersection; that he did not apply his brakes until after the collision; that his back tires ‘were not very good * * * were fairly smooth’; that one brake was dragging. Defendan...