Wimmer v. Colman

• Decision Date: 29 December 1943
• Docket Number: No. 70.,70.
• Parties: WIMMER v. COLMAN.
• Court: Michigan Supreme Court

307 Mich. 413

12 N.W.2d 378

WIMMER

v.COLMAN.

No. 70.

Supreme Court of Michigan.

Dec. 29, 1943.

Action by Della Wimmer against George H. Colman for injuries sustained when automobile in which plaintiff was a passenger collided with automobile driven by defendant. From a judgment for defendant notwithstanding the verdict for plaintiff, plaintiff appeals.

Affirmed.

BOYLES, C. J., and STARR and BUSHNELL, JJ., dissenting.

Appeal from Circuit Court, Oakland County; Frank L. Doty, judge.

Before the Entire Bench.

Mahlon J. Macgregor, of Detroit, for appellant.

Pelton & McGee, of Pontiac, for appellee.

SHARPE, Justice.

This is an action for personal injuries suffered in a collision between an automobile owned by plaintiff's nephew, in which she was riding as a passenger, and an automobile owned and driven by defendant.

The accident occurred at approximately 7 p.m., on December 9, 1941, at the intersection of Harry and Russell streets in the city of Hazel Park, Oakland county, Michigan. Both streets are crowned dirt roads sloping off on either side to a ditch, or a grass or dirt shoulder. Both streets are about the same width, 18 to 19 feet in the traveled portion. Neither is a through street or protected by stop signs.

Plaintiff, a woman 54 years of age, was riding in an automobile owned and driven by her nephew. They were proceeding west on Harry street at a rate of speed of approximately 20 miles per hour. At the same time, defendant was proceeding south on Russell street. When plaintiff's driver was about 70 feet east of Russell street, he observed defendant's car on Russell street about 250 to 300 feet north of the intersection. Plaintiff's driver continued on at the same rate of speed until he was from 5 to 10 feet east of Russell street, when he observed that defendant's car was from 125 to 150 feet north of the intersection. Plaintiff's driver proceeded across Russell street and was struck when the rear end of his car was from 3 to 5 feet west of the traveled portion of Russell street. Plaintiff was severely injured as a result of the collision.

At the conclusion of plaintiff's case and again at the conclusion of all testimony, the defendant moved for a directed verdict upon the theory that plaintiff's driver was guilty of contributory negligence. The trial court reserved decision and submitted the cause to the jury under the provisions of the Empson Act (3 Comp.Laws 1929, §§ 14531-14534, as amended by Act No. 44, Pub. Acts 1939 (Comp.Laws Supp.1940, § 14531, Stat.Ann. and Stat.Ann.1943 Cum.Supp. § 27.1461-27.1464). The jury rendered a verdict in favor of plaintiff in the amount of $1,500. Subsequently, the defendant filed a motion for judgment notwithstanding the verdict. This motion was granted by the trial court. Plaintiff appeals.

The rule is well known that where a judgment is entered for defendant notwithstanding a verdict for plaintiff, we must view the testimony in a light most favorable to plaintiff.

In deciding this case we have in mind that defendant in the operation of his automobile was guilty of negligence. The only question for review is whether or not plaintiff's driver was guilty of contributory negligence as a matter of law. The observations made by the driver of plaintiff's car and the heed paid to such observations are the determining factors in the case at bar.

In Wells v. Oliver, 283 Mich. 168, 277 N.W. 872,' in speaking of the driver of plaintiff's car we said: ‘He was bound to observe and pay heed, while crossing, to traffic approaching the intersection from his right * * *.'

In Nelson v. Linderman, 288 Mich. 186, 284 N.W. 693, 694, we said: ‘Something more than a fleeting glance at an approaching car is necessary if plaintiff seeks to avoid the burden of contributory negligence.'

In Ayers v. Andary, 301 Mich. 418, 3 N.W.2d 328, 329, we said: ‘If one is to make a proper observation of an oncoming car under the circumstances of the instant case, the observation must include not only the distance the approaching car is from the point of possible collision but also some observation and judgment of its approximate speed.'

In the case at bar, plaintiff's driver, when about 70 feet east of Russell street, saw defendant 250 to 300 feet away. At that time plaintiff's driver was driving at a speed of approximately 20 miles per hour. He stated: ‘I figured this car to be coming about 20 to 25 miles per hour, I proceeded at the same speed.’ He next saw defendant 125 to 150 feet north of the intersection. At this time, plaintiff's driver was from 5 to 10 feet east of the east line of Russell street.

In speaking of defendant's car approaching, plaintiff's driver testified:

‘I saw the defendant's car * * * the first time, 250 to 300 feet away. * * * I didn't look at it carefully. I glanced at it. I saw his lights and he didn't seem to be going too fast. I guessed him to be going twenty to twenty-five miles per hour.'

‘Q. Now, did you form an opinion at that time (second observation) whether or not it would be safe for you to cross? A. Yes, I figured I had plenty of time to go right on across.'

‘I travelled about 35 or 40 feet from the time I made my last observation to the time I was hit, and during this time the other car was coming from 125 to 150 feet. It had its lights on and I saw it, and knew it was coming. I did nothing to stop, to slow down or to increase. I proceeded on. * * * I don't think I made any further observation during the last thirty-five or forty feet.'

Having in mind that Russell street is approximately 30 feet wide, that the traveled portion of it is 18 to 19 feet wide, and that at the time plaintiff's driver saw defendant's car in the middle of the block, he was 5 to 10 feet east of Russell street, we find that plaintiff's driver had to travel the width of Russell street, about 30 feet, plus the distance he was east of Russell street, plus the length of his automobile, or a total distance of approximately 45 to 50 feet, in order to reach a place of safety. In our opinion the driver of plaintiff's car failed to properly observe and heed the distance and speed of the approaching car. Such negligence bars recovery on the part of plaintiff.

The...