Rathburn v. Riedel , 291 Mich. 652 ( 1939 )

I am unable to concur in affirmance because under plaintiff's own testimony he was guilty of contributory negligence as a matter of law. The accident occurred at the intersection of two graveled highways. Plaintiff was unusually familiar with the surroundings. He knew his view on approaching the intersection was obstructed. Still he approached at 45 miles per hour but slowed down to about 30 miles per hour at the point where he could first obtain a view of southbound traffic on the north and south road. He was then within 4 to 6 feet of the westerly line of the gravel on the intersecting highway. Under his own testimony he could not have stopped his car in less than 25 to 30 feet. Approaching the intersection at the rate plaintiff did under the circumstances was negligence; and as he reached the point where he could obtain a view it was wholly impossible for him to stop his truck until he had passed into and practically across the traveled portion of the north and south graveled road. Plaintiff knew he was approaching a corner where his view was obstructed at so great a rate of speed that he could not avoid collision with southbound traffic after reaching the point where a view was possible. What he might then discover was bound to be of no avail. So what plaintiff may have observed in the way of defendant's slackening his rate of speed at the time and place plaintiff obtained his view had no material bearing upon the happening of this accident. At that instant plaintiff, by his own negligence, had gotten himself into a position where the collision could not be avoided by anything he could do. Since plaintiff knew he was approaching an intersection where his view of cross traffic was obstructed, he was bound to use a proportionately greater degree of care. In approaching this intersection at the high rate of speed above noted he was not driving in a careful and prudent manner and with due regard to other traffic on the highway. I Comp. Laws 1929, § 4697, as amended by Act No. 119, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 4697, Stat. Ann. § 9.1565). Decision herein falls within Kerns v. Lewis, 246 Mich. 423, and Block v.Peterson, 284 Mich. 88. Plaintiff's own negligence was a proximate cause of this accident and under the law of this State he cannot recover.

Judgment entered in the circuit court should be reversed and one ordered in accordance herewith. Costs of both courts to defendant.

WIEST, J., concurred with NORTH, J.