Wimmer v. Colman , 307 Mich. 413 ( 1943 )

I do not agree that plaintiff must be held to have been guilty of contributory negligence as a matter of law. This was an issue of fact which was properly left to the jury.

The accident occurred at an intersection of two streets of equal priority as to traffic rights. The driver of plaintiff's automobile, proceeding west at 20 miles per hour, when 5 or 10 feet from the intersection observed defendant's automobile approaching from the north 125 to 150 feet distant. These two streets were dirt roads, each having one lane for traffic. Both drivers were proceeding down the center of their respective highways. Plaintiff's driver observed the speed and distance of defendant's automobile, formed the opinion that he had time to cross without an accident. He had crossed the north-south traveled portion of the intersection and the rear end of his automobile was 3 to 5 feet west of the center traveled portion and clear of the north-southbound traveled part when the rear end of his automobile was struck by defendant's car. He had formed the correct judgment, because there would have been no accident if defendant had continued straight on through the intersection.

This is not a case to apply the "sudden emergency" or "last clear chance" doctrine, because defendant denies negligence and at no time has claimed sudden emergency as a defense. On the contrary, the defendant raised a clear issue of fact by claiming that the accident occurred in the center of the intersection. This issue was submitted to the jury. Defendant denied that he turned to his right. Plaintiff cannot be penalized when the facts show that her driver's judgment was correct.

I agree with the statement of Mr. Justice SHARPE:

"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."

However, I reach a different conclusion.

There was a direct conflict of testimony as to whether the accident occurred in the intersection, or after plaintiff's automobile had passed the traveled portion of the defendant's north-south highway. After instructing the jurors that they were the judges of the credibility of the witnesses, the court instructed the jury that the defendant was guilty of negligence, that it was the duty of plaintiff's driver to yield the right of way to defendant, that if the accident happened in the center of the intersection that would end the case and the verdict should be no cause for action, but that if it happened west of the intersection, then "that raises a question of fact for your consideration." The physical facts as to where the cars showed damage, the distance they went after the impact and the position they were finally in, the nature of the intersection, all were left to the jury and support the verdict. The court granted defendant's motion for judgment notwithstanding the verdict, on the ground that plaintiff's driver did not make, and continue to make, proper observation. This is not the controlling issue, because plaintiff's driver did make proper observation and the judgment he formed was correct. Saunders v. Joseph, 300 Mich. 479;Pelham v. Keip, 306 Mich. 500 (October 11, 1943). InLefevre v. Roberts (syllabus), 250 Mich. 675, the court held:

"Whether truck driver was guilty of contributory negligence in proceeding to cross trunk line highway in front of approaching automobile 400 feet away, was question for jury, although he made no further observation of the automobile after starting across."

In Lindzy v. Swaab, 263 Mich. 264, plaintiff's automobile was struck "just as she had passed the center of the intersection." Held: that the question of contributory negligence was for the jury. To the same effect, see Adams v. Canfield,263 Mich. 666; Rathburn v. Riedel, 291 Mich. 652.

The judgment should be set aside and the case remanded for entry of judgment on the verdict, with costs to plaintiff.

STARR and BUSHNELL, JJ., concurred with BOYLES, C.J.