Waskelis v. Cont'l Baking Co.

• Decision Date: 20 February 1945
• Docket Number: No. 27.,27.
• Citation: 17 N.W.2d 785,310 Mich. 649
• Parties: WASKELIS v. CONTINENTAL BAKING CO.
• Court: Michigan Supreme Court

310 Mich. 649

17 N.W.2d 785

WASKELIS

v.CONTINENTAL BAKING CO.

No. 27.

Supreme Court of Michigan.

Feb. 20, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Action by Anthony Waskelis against Continental Baking Company, a foreign corporation, for damages resulting from an automobile collision, wherein defendant filed a cross-action. From a judgment of no cause of action, plaintiff appeals.

Judgment affirmed.

Before the Entire Bench.

Roy A. McGinty, of Melvindale, for appellant.

Kerr, Lacey & Scroggie, of Detroit (Wilfrid C. Dilworth and Benedict H. Lee, both of Detroit, of counsel), for appellee Continental Baking Co.

SHARPE, Justice.

This case arises out of a collision at the intersection of Trumbull and Canfield avenues, in the city of Detroit, between plaintiff's automobile, which was being driven in a westerly direction on Canfield avenue, and defendant's truck which was proceeding northerly on Trumbull avenue.

The only testimony appearing in the record is that of the plaintiff who testified that on the morning of April 14, 1942, at about the hour of 5 a. m., he was driving his automobile in a westerly direction on Canfield avenue in the city of Detroit toward the intersection of Canfield and Trumbull avenues; that it was dark at the time, but the street lights were burning; that as he approached the intersection, he stopped his car at a stop sign located 10 or 15 feet east of the easterly curb of Trumbull avenue; that Trumbull avenue runs in a northerly and southerly direction and is about 40 to 50 feet wide, with two sets of street car tracks at or near its center; that Canfield avenue intersects Trumbull avenue at right angles; that as he stopped his car, he looked to the left or south and saw a truck approaching at a distance of approximately 150 feet approximately midway between the curb and the car tracks, but did not observe or form any estimate of the rate of speed at which the truck was approaching; that he proceeded into the intersection at a speed of between 5 and 10 miles an hour; that when the front half of his car was over the most westerly rail of the street car tracks, he saw defendant's truck coming 20 to 30 feet to his left; that at that time plaintiff was making a left turn, but when he saw the truck so close, he attempted to turn to the right and was struck by the truck, causing great damage to the left center of his car. Plaintiff also testified that his car was 12 to 14 feet in length.

At the close of plaintiff's proofs, defendant made a motion for entry of judgment of no cause of action both as a matter of fact and as a matter of law based upon the contributory negligence of plaintiff.

The trial court granted the motion and said: ‘I am constrained to grant the motion, because of plaintiff's own testimony that when he looked to the south he formed no judgment whatsoever as to the speed of the approaching vehicle. He did not even make a guess as to how fast the truck was coming in his direction. He saw the light 150 feet away, and then started up between 5 and 10 miles an hour, to get into the intersection. He certainly should have informed himself, with a fair degree of accuracy, as to the speed of the car that was approaching, in order to satisfy himself, whether or not be could run the 15 feet from the easterly curb line of Trumbull into the intersection of...