Shoniker v. English, 28.

• Decision Date: 07 April 1931
• Docket Number: No. 28.,28.
• Parties: SHONIKER v. ENGLISH et al.
• Court: Michigan Supreme Court

254 Mich. 76

235 N.W. 866

SHONIKER

v.ENGLISH et al.

No. 28.

Supreme Court of Michigan.

April 7, 1931.

Error to Circuit Court, Kent County; William B. Brown, Judge.

Action by Clairmont Shoniker against Warren W. English and another, and cross-actions by defendants. Judgment for defendants on the action and the cross-action, and plaintiff brings error.

Reversed and remanded with directions.

Argued before the Entire Bench.Grant Sims and Rodgers & Dunn, all of Grand Rapids, for appellant.

Linsey, Shivel & Phelps, of Grand Rapids, for appellees.

FEAD, J.

In action and cross-action for injuries sustained in a collision between automobiles, verdict was directed against plaintiff for contributory negligence and defendants had verdict of a jury and judgment for damages.

Just outside the city limits of Grand Rapids, U. S. 131, a superhighway, runs north and south on Division street and crosses M. 114, a state trunk line highway, properly so marked, at Beals street. Both streets are paved 40 feet wide at the intersection. The state highway department undertook the paving of U. S. 131 for a distance south of the crossing and detoured the superhighway west on Beals street. It erected a barricade across Division street 20 feet south of the pavement and put up the usual sign that the road was under repair and travel was at driver's risk. At the time of the collision, September 15, 1929, the east half of the pavement had been completed and was open to local traffic. The barricade then extended over only the west half of the road. M. 114 had been a stop street as to U. S. 131, and was properly equipped with stop signs. When U. S. 131 was detoured the department continued the stop sign on Beals street 80 feet west of the crossing.

In outlining the circumstances of the collision, we accept the testimony favorable to the parties respectively.

Defendant Harold English drove east on Beals street and halted at the stop sign. On his right was a gasoline station which obstructed his view to the south. He could see 150 feet south of the intersection on Division street, his view was obstructed for the next 100 feet, and from that point he could see to a rise 400 feet distant from the crossing. When at the station, he looked to the south, saw no car approaching, waited for one to come out of the blind spot, none came, he started in low gear, shifted to second speed, ran at a rate of 12 miles per hour, did not look to the south again until he was at the west line of the intersection, saw plaintiff's car some 10 feet south of the barricade, applied his brakes instantly, could not stop, and his car was struck at about the middle by plaintiff's some 4 feet west of the east line of the crossing. At a speed of 12 miles per hour he could have stopped his car in 5 feet.

Plaintiff was driving north at a speed of 30 miles per hour, coasting after he passed the rise. When about 80 feet from the crossing he looked to the west and saw no car. The gasoline station prevented his seeing defendants. He did not look again until about at the barricade, saw defendants' car 20 feet west of the intersection, coming at 30 to 35 miles per hour, applied his brakes, reduced speed to 20 miles per hour, but was not able to stop. Plaintiff knew U. S. 131 had been detoured, that the barricade and sign were at the crossing, that M. 114 was a trunk line highway, that the road on which he was traveling was under repair, and the east portion had been open only to local travel.

Each party claims he had the right of way and, therefore, was not guilty of negligence and the other was negligent. Plaintiff said he relied upon there being a stop sign on Beals street, that there was no such sign on Division street, and, as he was on the right, he had the right of way. Defendants contend that Beals street was the superior road because M. 114 was a trunk line highway and the detour of U. S. 131 had left the portion of Division street under repair with a status no greater than a private road.

When the state highway department closes a road only partly, but it is open ‘to the use of the public, as a matter of right, for purposes of vehicular travel,’ it remains a highway. Comp. Laws 1929, § 4693(n). The department may make regulations as to its use, which are binding on the public if they are posted on the road. Comp. Laws 1929, §§ 4629, 46...