Smarinsky v. Markowitz, 12.
| Decision Date | 19 December 1933 |
| Docket Number | No. 12.,12. |
| Citation | 265 Mich. 412,251 N.W. 539 |
| Parties | SMARINSKY v. MARKOWITZ. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.
Action by Esther Smarinsky, administratrix of the estate of Joseph Smarinsky, deceased, against Max Markowitz. Judgment for plaintiff, and defendant appeals.
Affirmed.
Argued before the Entire Bench.
David E. Roberts, of Detroit, for appellant.
Maurice Schwartz, of Detroit, for appellee.
Plaintiff's decedent, Joseph Smarinsky, while crossing at a street intersection in the city of Detroit, was fatally injured by an automobile driven by defendant. Traffic at the intersection was regulated by lights. The accident was in a business district, where speed of an automobile was limited to fifteen miles per hour. The accident was late in the evening, but the intersection was well lighted. Plaintiff's decedent started to cross the street with the traffic light in his favor and against defendant's crossing, but, while in the act of crossing, the light changed, and defendant drove on, and his automobile struck the pedestrian and knocked his body to about the center of the intersection.
The jury evidently found that plaintiff's decedent was guilty of negligence in not noticing the change of light and defendant's approach, but that defendant was aware of his position in time to have avoided the accident, had he exercised reasonable care. Plaintiff had verdict and judgment for $5,500, and defendant, upon appeal, presents three questions:
‘1. Did the negligence of the deceased constitute continuing or concurring negligence?
‘2. If the negligence of the deceased continued up to the time of the impact, should the doctrine of subsequent or discovered negligence be applied?
Counsel for defendant contends that, if decedent's negligence placed him in danger and continued up to the time of the collision then, even though defendant was guilty of negligence, there can be no recovery.
We need but say that the issue at bar was one of subsequent negligence. When defendant approached the intersection, the red light was against him, and he saw the pedestrian crossing under its protection. This called upon him to exercise care commensurate with the circumstances. It is true the light changed just as defendant reached the intersection, but he approached the intersection with the warning that pedestrians were invited to cross and saw the pedestrian crossing. Such invitation to cross and protection while doing so did not cease upon change of light while the pedestrian was in the act of crossing. The change of...
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Conant v. Bosworth, s. 57
...cited. We think the same comment is justified with reference to Steele v. Stahelin, 234 Mich. 307, 207 N.W. 822, and Smarinsky v. Markowitz, 265 Mich. 412, 251 N.W. 539, also cited by appellant. The opinion in each case must be read in the light of the facts involved. In the Steele case pla......
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...in question, he is guilty of negligence.’ Louthain v. Hesse, 234 Mich. 695, 209 N. W. 138, 139. See, also, Smarinsky v. Markowitz, 265 Mich. 412, 251 N. W. 539, as to intersections guarded by traffic lights. The disputed question as to whether plaintiffs were within the boundaries of the cr......
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Sloan v. Ambrose
...to cross to the other side of the street even though the light did change in the meantime.’ Plaintiff relies upon Smarinsky v. Markowitz, 265 Mich. 412, 251 N.W. 539, where we said: ‘When defendant approached the intersection, the red light was against him, and he saw the pedestrian crossin......