Ayers v. Andary , 301 Mich. 418 ( 1942 )

This is a street intersection automobile collision case. The chief issue is: Was Russell G. Clements, the driver of the car in which plaintiff Ruth N. Ayers was a guest passenger, guilty of contributory negligence as a matter of law? The trial judge submitted the question to the jury and the finding was adverse to the defendant, Jacob A. Andary.

Plaintiff is the wife of Clifford Ayers, of the city of Lansing. On Sunday, August 4, 1940, Clements and his wife, who live in the city of Detroit, were visiting at the Ayers home. After dinner, Mrs. Ayers and Mrs. Clements and their daughters got into the Clements' car to take the Ayers' daughter to work and the Clements' daughter to visit friends. While returning from this trip the Clements' car approached Logan street from the west on Oakland street. At the same time defendant Andary's car was approaching Oakland street from the south on Logan street. On the southwest corner of this intersection is a church and a tree, neither of which obstructs the view to the south. At Saginaw and Logan streets, two blocks south of the scene of the accident, is a traffic light, but neither Logan nor Oakland is a stop street where they intersect. The day was bright and clear and the pavement was dry.

Clements, the driver of the car in which plaintiff Ayers was riding, testified that, as he reached the intersection, he noticed a car approaching from the south about 125 to 150 feet away, and there was no traffic from the other direction. He said that he slowed down about five miles an hour as he approached Logan street, and then proceeded into the intersection at about 15 miles per hour, and had attained a speed of about 18 to 20 miles per hour at the time of impact. When he got about half way across Logan street he said he again saw the Andary car, this time about 30 to 35 feet away, and traveling at a speed of at least 60 miles an hour. Realizing that an accident was inevitable, he swerved his car to the left. According to Clements, when his car was two-thirds of the way through the intersection it was struck by the Andary car in back of the front seat, and he was thrown from his car onto a near-by lawn. The Clements car came to a stop on the sidewalk on the north side of a fire hydrant which is located between the curb and sidewalk on the north side of Oakland street about 40 feet east of the east curb line of Logan street.

Defendant Andary testified that he was going north on Logan street to his home on Glenrose street and had stopped for a red light, where he turned from Saginaw onto Logan. As he approached Oakland street he looked both ways and did not see any other automobile. He said he was then driving his car to the right of the center of Logan street at approximately 25 miles per hour. When he reached the intersection of Oakland street he again looked and saw nothing approaching from the east but, as he looked to the west, he saw a Ford car coming towards him from his left on Oakland. He said he slammed on his brakes but was unable to avoid the collision. After the accident his car came to an immediate stop in the intersection slightly to the right and facing slightly southeast

The record contains other conflicting testimony with respect to various distances and estimates of speed, and there is corroborating testimony supporting the contentions of both parties.

We have held in a number of cases that contributory negligence is generally a question of fact for the jury, and that, in order to justify a holding of contributory negligence as a matter of law, the evidence should be such that all reasonable minds should reach the same conclusion. Golob v. Detroit United Railway,228 Mich. 201; Adams v. Canfield, 263 Mich. 666; Thompson v. Michigan Cab Co., 279 Mich. 370. In the Thompson Case the court said:

"It is an impossibility to lay down precise rules by which we may measure all acts of contributory negligence. Some cases must, of necessity, stand or fall on their own facts. What one does or fails to do, as relates to the circumstances under which he acts, is the test to be applied."

Defendant contends that the evidence conclusively shows that Clements either made no observation before crossing the street or, at best, took only a fleeting glance in the direction of defendant's car. See Nelson v. Linderman, 288 Mich. 186. However, we find sufficient evidence in the record to justify the jury's findings that Clements made proper observations.

Appellant also contends that there is no evidence from which the jury could find that Clements formed a belief that it was safe for him to cross Logan street after observing defendant's car, and that formation of a reasonable belief that he could cross the intersection in safety was essential to negative contributory negligence. See Kerr v. Hayes, 250 Mich. 19.

The record does not show that Clements expressly stated that he formed such a belief or reached such a conclusion, but, from the fact that after observing defendant's car he did proceed across the intersection, the jury could properly infer that he formed such a belief. It is not unreasonable to conclude that one can drive his car across an intersection in safety when the nearest approaching car is from 125 to 150 feet away.

We make no attempt to harmonize the physical facts because we cannot expect lay witnesses to be mathematically exact in their estimates of distances and speeds and a reasonable interpretation of such testimony must be permitted. It is sufficient to say that the jury could find from the testimony that the accident happened substantially as claimed by plaintiff.

Appellant complains as to errors in the charge, but a reading of the charge in its entirety shows that defendant's theory of the case was fairly presented to the jury.

The judgment entered upon the verdict of the jury should be affirmed, with costs to appellee.

STARR, J., concurred with BUSHNELL, J.