Strong v. Kittenger

• Decision Date: 05 January 1942
• Docket Number: No. 68.,68.
• Citation: 300 Mich. 126,1 N.W.2d 479
• Parties: STRONG v. KITTENGER et al.
• Court: Michigan Supreme Court

300 Mich. 126

1 N.W.2d 479

STRONG

v.KITTENGER et al.

No. 68.

Supreme Court of Michigan.

Jan. 5, 1942.

Action by Edgar Strong, administrator, against Harry Kittenger and Keith Kittenger to recover damages for the death of Adelia Bassett sustained in an automobile collision. From judgment for plaintiff, defendants appeal.

Affirmed.Appeal from Circuit Court, Jackson County; Benjamin Williams, judge.

Argued before the Entire Bench.

Bisbee, McKone, Badgley & McInally, of Jackson, for defendants and appellants.

Kim Sigler, of Hastings, for plaintiff and appellee.

STARR, Justice.

This case involves an automobile accident, occurring Sunday afternoon, May 19, 1940, at the intersection of Ionia county highway 583, running north and south, and Ionia-Barry county line road, running east and west. Both roads were of equal importance; neither was a ‘through highway’; and both were gravelled at the intersection. There were no signs on either road indicating the intersection. Visibility was clear; the roads were dry; and the vision of both drivers was unobstructed.

Plaintiff's decedent Adelia Bassett, 57 years of age was riding in a 1929 Ford sedan, owned by her husband, William Bassett, and being driven north on the Ionia county highway 583 by her 19-year-old son (by a former marriage), Clarence Richardson. Defendant Keith Kittenger, about 20 years old, accompanied by two young people, riding in the front seat with him, was driving his 1936 Ford automobile, registered in the name of his father, defendant Harry Kittenger, east on the Ionia-Barry county line road.

Decedent's driver testified that he was familiar with the road; that he was traveling at a speed of about 25 miles an hour; that, as he approached the intersection, he reduced his speed to about 20 miles and proceeded into the intersection at that speed; that, when he was about 250 feet from the intersection, he saw defendants' car approaching from the west and continued to observe such car up to the time of the collision; that when he was about 50 to 75 feet from the intersection and defendants' car was about 150 to 200 feet from the intersection, the latter started to slow down; that he had the right of way and, when defendants' car slowed down, he believed it was going to stop and give him the right of way. He further testified that at a speed of 25 miles an hour he could stop his car in a distance of 15 to 20 feet.

Defendant driver testified that he was not familiar with the road; that he approached the intersection at a speed of from 35 to 38 miles an hour; that he did not slow down; that he did not see the car in which decedent was riding; that he did not see the intersection; and that he did not look to the right or left.

Neither driver sounded his horn or applied his brakes. The cars collided at about the middle, or a little north, of the intersection, the right front wheel of defendants' car striking the left front wheel of decedent's car. Plaintiff's decedent sustained a broken neck and other injuries and was unconscious when examined by a physician at the scene of the accident. She was removed to the Hastings hospital, regained consciousness, and asked about members of her family and what had happened. She died within an hour or two after reaching the hospital.

At the conclusion of plaintiff's proofs defendants moved for directed verdict on the ground that decedent's driver was guilty of contributory negligence as a matter of law. The court denied such motion, saying: ‘There is a question of fact involved which should be submitted to the jury.'

The case was submitted to the jury, which returned a verdict of $2,000 for plaintiff, and judgment was entered on such verdict. Defendants' motion for a new trial was denied, the court saying: ‘It is believed there was a fair question for the jury on which the minds of reasonable men might differ; that the case was properly submitted, and that therefore the motion for a new trial should be denied.'

Defendants' ‘statement of questions involved’ raises no question as to defendant driver's negligence nor as to the verdict's being against the great weight of the evidence. Therefore, the question on this appeal is whether or not decedent's driver was guilty of contributory negligence as a matter of law, which would be imputed to be cedent and bar recovery by plaintiff.

On direct examination decedent's driver testified:

‘Q. Did this same relative distance, that is, or speed, continue? That is to say, did he continue to come at about three times as fast, would you say as you were? A. When we got about that close, why, I noticed that he started to slow down a little, and I figured he was going to stop; so--

‘Q. Wait just a moment before we get to that point. You said there did come a time when he was down the road there the distance that you just a moment ago testified to, when you make some determinations concerning his speed. How fast did you determine he was driving at that time? A. Well, I figured he was going at least 60 miles an hour.

‘Q. All right. You then proceeded on toward the intersection? A. Yes, sir.

‘Q. You say there came a time when he began to slow down? A. Yes, just a little.

‘Q. About how far away would say he was when he began to slow down? A. Possibly 100 or 150 feet. Maybe further.

‘Q. About how far away were you then? A. Probably 50 feet. * * *

‘Q. Did you believe that he was going to stop? A. Yes, sir.

‘Q. And believing that he was going to stop, did you rely upon his actions in, as you say, slowing down? A. Yes, sir.

‘Q. Did you then proceed to the intersection? A. Yes, sir.

‘Q. Had you arrived practically at the intersection when you observed that he was not going to slow down? A. Yes, sir.

‘Q. When you arrived at the intersection, was he some little distance beyond, back from it? A. Yes.

‘Q. Which one of you arrived at the intersection first? A. I did.

‘Q. Did there come a time then when you saw he was not going to stop? A. Yes, sir.

‘Q. Was that when you were practically at the intersection? A. Yes, sir. * * *

‘Q. Could you have stopped at that time? A. Well, if I would have stopped, I would have been right in the intersection, anyway, in the middle of the intersection. * * *

‘Q. Did you keep your eyes upon him all of the time? A. Well, I kept watching him and watching the road too.'

On cross-examination decedent's driver testified:

‘Q. * * * Mr. Richardson, did you figure that you had the right of way there and therefore you could go ahead and he would look out for you? A. Well, I figured that I was on a county gravel road and he was on the side road and that I would be to the intersection first if he observed the intersection. That was why I figured I had the right of way. * * *

‘Q. Now, you testified, as you have told us here, that you thought he was going to slack up to that second; and that was the second, as I understand this testimony, just before the impact occurred. Is that what you thought? A. Well, I didn't hardly know what to think.

‘Q. * * * What did you mean, Mr. Richardson, when you testified as follows: ‘I thought he was going to slack up to that second?’ A. Well, I figured that he would probably slow up and let me through. * * *

‘Q. Didn't you know, Mr. Richardson, that you thought if you both continued at the same speed you were that there would be bound to be a collision there in that intersection? A. Well, I did know it, yes.

‘Q. But you still continued to go on down there? A. Well, as I said before that, he slowed down and gave me some indication of slowing down when he was about that far away, about 150 or 200 feet away; so I figured he was going to stop, and I kept right on a-going. * * *

‘Q. * * * You thought he was going to slack up and let you through because you were closest to the intersection, is that right? A. Yes, sir.

‘Q. Did he slack up? A. Yes, I said he slacked up before.

‘Q. Where? A. About 150 or 200 feet away from the center of the intersection.'

This case is controlled by our decision in Stuck v. Tice, 291 Mich. 486, 289 N.W. 225, in which the facts were very similar. In that case plaintiff was traveling north on a gravel road, at a speed of about 30 miles an hour, and defendant was traveling east on a dirt road, at a speed of about 50 or 55 miles an hour. Both roads were of equal importance. The day was clear, and the view of both drivers was unobstructed. Our opinion stated, 291 Mich. at page 489, 289 N.W. at page 226: ‘At it [defendant] approached the intersection, according to several witnesses, the truck appeared to slow down either for the purpose of stopping or of making a right-hand turn, and for this reason the driver of plaintiff's car proceeded across the intersection without relaxing his speed. Defendant, however,after slowing down, picked up speed again and the vehicles collided after plaintiff's car had crossed the southerly half of the intersection by six or eight feet. It was further shown that from the position of the car at the time of the impact defendant was on the left or north side of the road.'

Mr. Chief Justice Butzel writing for affirmance of judgment for plaintiff, said 291 Mich. at page 489, 289 N.W. at page 226: ‘Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame. The circumstances of the present case, however, take it out of the ordinary rule. When two cars meet at an intersection, it becomes the duty of both drivers to slow down and respect each other's rights. Necessarily one car at some time must pass before the other. When the driver of plaintiff's car keeps his eye constantly on defendant's truck which was seen to slow down so as to give the impression that it was going to stop or turn, it becomes a question of fact whether the driver of plaintiff's car acted prudently in proceeding without anticipating that defendant would suddenly accelerate the speed of his truck and strike plaintiff...