Barron v. City of Detroit , 348 Mich. 213 ( 1957 )

Dethmers, C. J.

{dissenting). Defendant appeals from denial of its motion for directed verdict and judgment for plaintiff. Construing the evidence in the light most favorable to plaintiff, she was struck, while walking across an intersection under protection of a green traffic light, by defendant’s streetcar which was running against a red traffic light. Standing at the south end of a safety zone on the west side of the street and north of the intersection, she faced east intending to proceed in that direction along the north crosswalk across the intersection. She looked south, saw the streetcar, beyond the intersection, approaching from her right 250 feet distant and watched it come at a rate of speed of 20 to 25 miles per hour for a distance of 25 feet. Then she looked ahead and saw an automobile come from the east and make a right-hand turn in front of her to go north. Then, seeing the green traffic light in her favor, she started to cross. After going a few steps she hesitated, again looked to her right, saw the streetcar still approaching and watched it travel for a distance of about 5 feet at a rate of speed of 5 to 10 miles per hour, apparently about to stop at the safety zone south of the intersection. The car was then still over 160 feet away from her. She did not look at or see it again, but started walking once more, saw another automobile approaching the intersection from the east, saw that the light was still green in her favor, walked approximately 12 feet after having made her last observation of the streetcar 160 feet distant, and thereupon was struck by it.

Plaintiff says that the ease which is closest on the facts is Ortisi v. Oderfer, 341 Mich 254, hut that her case is stronger than plaintiff’s in Ortisi in that (1) although Ortisi saw the light turn green in his favor before proceeding to cross the intersection he did not again look at it, while in the instant case plaintiff made a second observation of the green traffic light while crossing; (2) there were no proofs in Ortisi as to the width of the street plaintiff was crossing, hut here it is shown to have been 90 feet; (3) it was not proved in Ortisi whether the light was still green in plaintiff’s favor when he was struck, but that was proved at bar; (4) in Ortisi it was not shown what part of defendant’s automobile struck plaintiff, while here it was shown that the right front of defendant’s streetcar struck plaintiff. These distinctions between the facts in the 2 cases make no appreciable difference as to the law applicable.

In Ortisi and the later case, Buehler v. Beadia, 343 Mich 692, this Court was evenly divided on the general problem here presented, namely, should plaintiff be held guilty of contributory negligence as a matter of law or should the question of contributory negligence be held to he one of fact for the trier of the facts. Though there has been some change since in the composition of the Court, I apprehend that the division persists. In view of the full and exhaustive treatment of the law and precedents in the opinions in those 2 cases, little is to be gained from a further discussion. My view that plaintiff here should be held guilty of contributory negligence as a matter of law is supported by the analysis in the opinion written by Mr. Justice Carr in Ortisi and that written by Mr. Justice Reid in Buehler. If not directly in point, at least related, are the views expressed in my dissenting opinion in Krause v. Ryan, 344 Mich 428.

I hold for reversal without new trial and with costs •to defendant.

■ Sharpe and Carr, JJ., concurred with Dethmers, C. J.