Wilson v. City of Detroit
| Decision Date | 02 December 1941 |
| Docket Number | No. 18.,18. |
| Citation | 299 Mich. 473,300 N.W. 849 |
| Parties | WILSON v. CITY OF DETROIT. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by William Wilson against the City of Detroit (Department of Street Railrways), a municipal corporation, for injuries allegedly sustained when plaintiff's automobile collided with defendant's street car. From a judgment for defendant notwithstanding a verdict for plaintiff, plaintiff appeals.
Judgment non obstante veredicto reversed and case remanded for entry of judgment for plaintiff in accordance with verdict.
Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.
Argued before the Entire Bench.
Roy A. Moxley, of Detroit (Dale H. Fillmore and Dennis H. Dwyer, both of Detroit, of counsel), for appellant.
Leo A. Sullivan, of Detroit (Rodney Baxter, of Detroit, of counsel), for appellee.
About 10:40 a. m. on August 14, 1939, plaintiff was driving east on Warren Avenue in the City of Detroit. While attempting to cross Woodward Avenue plaintiff was struck by a southbound street car owned and operated by defendant. Plaintiff suffered serious injuries for which the jury in the lower court awarded him $1,000. The court granted a motion to set aside the jury's verdict and entered a judgment non obstante veredicto for defendant. The sole question presented on appeal is whether plaintiff was guilty of contributory negligence as a matter of law.
In reviewing the trial judge's action we must view the testimony in the light most favorable to plaintiff. Neesley v. Lord, 297 Mich. 163, 297 N.W. 226;Burnash v. Compton, 298 Mich. 70, 298 N.W. 408.
Immediately prior to the accident, plaintiff was on Warren Avenue west of Woodward waiting to cross Woodward Avenue and continue in an easterly direction on Warren. Another car was in front of his, also waiting for the traffic light which is at this intersection to change to green for Warren Avenue traffic. When the signal did change, this first car safely crossed Woodward, but plaintiff was struck by defendant's southbound street car. Plaintiff testified that as he entered the intersection on the green light he looked north and saw the southbound traffic, including the street car, stopped because of the red light. Plaintiff then looked ahead, having been second in line there was another car in front of him, and to the south, not returning his gaze to the north until he was almost upon the street car tracks. At this time he saw the street car going against the red light bearing down upon him. He could not stop in time nor was there time for him to speed up and get safely across, thus except for the blowing of his horn to attract the motorman's attention, which he did do, plaintiff could not prevent the street car crashing into the truck he was driving. The truck was hit at about the door near the driver's seat, plaintiff's leg thrown violently against the handle of the door and plaintiff being rendered unconscious for a few moments.
The testimony of the plaintiff that the street car after stopping started ahead and proceeded through the intersection against the red light finds ample support in the testimonyof other eyewitnesses to the accident.
In granting the motion for judgment non obstante veredicto, the trial judge did not have the benefit of our decision in the case of Neesley v. Lord, reported in 297 Mich. 163, 297 N.W. 226, 227, in which our position as to the issues here presented were there decided.
In the case at bar in granting the motion of defendant for judgment non obstante veredicto the trial judge relied chiefly on the testimony of plaintiff on cross examination, which indicated that plaintiff, midway between the intersection approach and the street car tracks, looked once more to the north and saw the street car in motion. This testimony of the plaintiff in cross examination was inconsistent with his statements made on direct examination, and which statements, so made on cross examination, were contradicted on redirect examination.
In the case of Neesley v. Lord, supra, we said:
‘In granting the motion for judgment non obstante veredicto the trial judge relied chiefly on the rebuttal testimony of plaintiff which inconsistently indicated that she was not in front of the car when it started up. However, there is still a question of what a prudent person would have done under similar circumstances. Burton v. Yellow & Checker Cab & Transfer Co., 283 Mich. 384, 278 N.W. 106;Smarinsky v. Markowitz, 265 Mich. 412, 251 N.W. 539;Benjamin v. McGraw, 208 Mich. 75, 175 N.W. 394. Moreover, counsel for defend...
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