Thompson v. Mich. Cab Co.

• Decision Date: 21 April 1937
• Docket Number: No. 45.,45.
• Citation: 279 Mich. 370,272 N.W. 710
• Parties: THOMPSON v. MICHIGAN CAB CO. et al.
• Court: Michigan Supreme Court

279 Mich. 370

272 N.W. 710

THOMPSON

v.MICHIGAN CAB CO. et al.

No. 45.

Supreme Court of Michigan.

April 21, 1937.

Action by Lucille Thompson against Michigan Cab Company and Frank Brace. From a judgment on a verdict for plaintiff, defendants appeal.

Affirmed.

Appeal from Circuit Court, Ingham County; Leland W. Carr, Judge.

Argued before the Entire Bench.

Kelley & Seelye, of Lansing, for appellants.

Rathbun & Arvidson, of Lansing, for appellee.

BUSHNELL, Justice.

The sole and controlling question in this appeal arises out of the trial judge's refusal to direct the jury to return a verdict for the defendants on their claim that plaintiff's driver was guilty of negligence as a matter of law, or to grant defendants' motion for a judgment non obstante veredicto.

Plaintiff recovered a verdict for $850 for injuries suffered by her in an automobile collision at the intersection of North Jenison and West Michigan avenues in the city of Lansing, between the hours of 2 and 3 a. m. on January 29, 1935. Neither of these streets was a through highway, but ‘slow’ signs at the corners gave warning of danger. The weather was clear, but these two paved streets were covered with ice resulting from a rain that had fallen during the previous evening. Plaintiff's witness, Will Benjamin, testified that it was one of the most difficult nights on which to drive during the entire winter.

Plaintiff, her husband and Benjamin had just returned to Lansing from a trip to Battle Creek; they were riding in Thompson's car, and due to the unfavorable road conditions the trip had consumed an unusually long time.

Just prior to the collision, Thompson's car, which was being driven by Benjamin, was proceeding in a southerly direction on Jenison approaching Michigan. Benjamin,who appears from his testimony to be the easy, willing type of witness, agreeable to everything proposed on cross as well as direct examination, testified that he stopped on the north crosswalk, lowered his left window, looked in both directions, saw no on-coming traffic and proceeded slowly into the intersection, continuing to watch for approaching vehicles. He said that he did not see defendants' cab until it was coming towards him from the left about 150 feet away. He stated that because of the icy condition of the street he could neither speed up nor stop his car in order to avoid the crash.

Benjamin was closely cross-examined regarding his view towards the east and the record indicates that a row of trees on the north side of Michigan avenue between the sidewalk and the curb prevented his view for more than 150 feet from where he stopped at the north crosswalk. We quote a portion of his recross-examination:

‘Q. As I understand it the only thing that prevented you from seeing the cab was those trees there? A. Yes.

‘Q. And the fact that you were in such a position on Jenison that the trees along the intersection at the left, along the street to your left, were in such a position that they blinded your view, is that it? A. Yes.

‘Q. Your could have moved two or three feet to the south and have seen farther to the east without those trees blinding your view couldn't you? A. Yes, sir.

‘Q. So that when you had started up and had gone two or three feet south from the time you had come to a complete stop, you were then only going about a mile or so an hour, weren't you? A. Yes, I was, around three or two to three.

‘Q. I am speaking of the point two or three feet south. A. Oh yes.

‘Q. Until you came to a complete stop there, how fast were you going then? A. About a mile an hour.

‘Q. About a mile an hour? A. Just starting up.

‘Q. From that point if you had looked to your left down the street you could have seen the car couldn't you? A. Yes, sir.

‘Q. And at that time you could have applied the brakes on your car couldn't you and brought it to a stop before going in the street? A. Yes, I could.’

Standing alone, this testimony might possibly justify the claim of appellants that plaintiff's driver's negligence was a question of law. However, elsewhere in the record Benjamin's answers justify a contrary conclusion.

Under the legitimate inferences from all of plaintiff's testimony taken in its most favorable light (Loveland v. Nelson, 235 Mich. 623, 209 N.W. 835), did Benjamin exercise that degree of reasonable care that would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury? Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich. 99, 118.

It is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence. Some cases must, of necessity, stand or fall on their own facts. What one does or fails to do as relates to the circumstances under which he acts is the test to be applied. Flynn v. Kramer, 271 Mich. 500, 505, 261 N.W. 77.

While no hard fast rule exists that speed or statutory right of way is determinative of negligence as a matter of law, each driver must use such care as is commensurate with obvious conditions. Bugbee v. Fowle, 277 Mich. 485, 490, 269 N.W. 570.

Were Benjamin's actions those of an ordinary careful and prudent man under like circumstances? Can the minds of reasonable men differ in answering this question? If so, the evidence should be submitted to a jury. Adams v. Canfield, 263 Mich. 666, 248 N.W. 800. In cases of this character, it should be made very plain by the proofs that the conduct of plaintiff's driver was negligent before he should be declared to be...