Boyd v. Maruski , 321 Mich. 71 ( 1948 )

This is an action of trespass on the case to recover damages for personal injuries which plaintiff claims she sustained through the negligence of the driver of a Checker taxicab owned by defendant Maruski and driven with Maruski's consent. At the conclusion of plaintiff's case, on motion of the defendant, the trial judge directed a verdict in favor of the defendant of no cause for action on the ground that the plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appeals.

We are required in reviewing the direction of a verdict in this case to consider the facts in the light most favorable to plaintiff's claim.

Plaintiff on January 17, 1943, at about 10 o'clock p.m. had been riding on a Detroit city bus on Wyoming street going north. As the bus approached the intersection of Puritan avenue and Wyoming street, the traffic light governing traffic at the intersection was red for traffic on Wyoming. Plaintiff got off the bus on the south side of Puritan at a point where there was no designated bus stop, the driver permitting her to alight from the bus at that point. An automobile had stopped for the red light ahead of the bus but had proceeded partly into the southerly part of the intersection. Plaintiff got out of the front of the bus, which was a short distance from the intersection, and she walked around the front of the bus, between the bus and the car that was stopped ahead of the bus, and proceeded to the southerly crosswalk of Puritan avenue. She testified the light was green in her favor when she got off the bus and that when she started to walk westerly across Wyoming she saw a standing taxicab on the northwest corner of the intersection. She testified that when she arrived half-way across the street as she was walking on the crosswalk, she looked at the traffic light and that the traffic light was green in her favor, and that she saw the cab still standing at the northwest corner at that time. Plaintiff testified:

"Q. All right. So that when you crossed the center line of the street the light was still green in your favor?

"A. It was still green in my favor."

Plaintiff also testified on cross-examination:

"Q. When you got to the middle of the road did you * * * then go on across the road?

"A. I went right on, of course. "Q. Then you told this court and this jury that at that point when you saw this car stop you didn't see it again until you got hit by it after you left the middle of the road?

"A. I walked straight on until I got hit.

"Q. You didn't see it again from the middle of the road until it hit you?

"A. He was standing when I was in the middle of the road.

"Q. You didn't see it come toward you after that?

"A. No.

"Q. You didn't look to see if it was coming toward you, did you?

"A. I wasn't looking at the taxi. I was looking at the light."

Plaintiff further testified that she proceeded on westerly until she was struck by defendant's taxicab when about 3 or 4 feet from the westerly curb of Wyoming street. The police report of the accident was received in evidence without objection. Officer Rickard reading therefrom read, "cab had broken front headlight," and further, under the caption, "point of impact," the report contained the words, "right front," indicating that the impact was with the right front of the Checker cab.

Under the circumstances as above described, it was not contributory negligence as a matter of law for plaintiff to continue going westerly through the westerly half of Wyoming street, while continuing to observe the traffic light, but not looking at the taxicab. Her continuing to look at the traffic light is at least some evidence that she was proceeding with a continued due regard for her safety.

In Moore v. Noorthoek, 280 Mich. 431, 437, we made quotations with approval as follows:

"In Guina v. Harrod, 275 Mich. 393, this Court said:

"`Pedestrians have the right to cross the street at street crossings even on a through street. They are not required to anticipate that drivers will violate ordinances, statutes or rules of safety.'

"In Petersen v. Lundin, 236 Mich. 590, we said:

"`There is no rule of law requiring a pedestrian to rivet his eyes on an approaching automobile. He should look but if, having looked, it appears safe to cross, he may proceed, and his care is not to be determined solely by the fact he was struck and was not at that second looking at the automobile.'"

In the more recent case of Werker v. McGrain, 315 Mich. 287, there was testimony to show that before crossing Grand River avenue at the intersection of Oakman boulevard plaintiff observed traffic coming from the east and also the traffic lights. After the light changed to green she started across the street. When she had proceeded for about 15 feet the light turned to amber. Without stopping at the safety zone near the car tracks she hurried across. She did not recall at what point in the street she was struck, her last recollection being that she had reached the middle of the avenue. Judgment for plaintiff was affirmed.

In the case at bar there was testimony to sustain plaintiff's claim that defendant was guilty of negligence and also testimony from which the jury could conclude that plaintiff was free from contributory negligence. The weight of the evidence on those two propositions was for the jury. The court was in error in directing a verdict. The judgment appealed from should be set aside and a new trial ordered. Costs to plaintiff.

BUSHNELL, C.J., concurred with REID, J.