Niewiadomski v. City of Detroit

Dethmers, J. Plaintiff appeals from judgment for defendant entered on a jury verdict of no cause for action in her suit for damages resulting from injuries sustained when struck by a streetcar of defendant city. Plaintiff stood at the northeast corner of an intersection and, when the traffic light was green in her favor, proceeded south on the east crosswalk. She saw the streetcar approaching her from the west. After she had crossed tracks for westbound cars she came to the most northerly rail of the tracks for eastbound cars and was struck by the left front corner of the streetcar. Her testimony concerning' respective locations of herself and the streetcar when she made her first and subsequent observations of it and concerning how frequent or continued such observations were is so lacking in clarity that no definite conclusions in those respects can be drawn therefrom. She did testify that when she saw the car coming she assumed that it would stop because the light was red against it. Where she and the car were, when or while she was relying on that assumption the testimony does not disclose. Manifestly, the car crossed the entire intersection, 100 feet in width, before it struck her. After it had entered the intersection but was still sufficiently distant from her to have permitted her to act to avoid injury there was no longer any justification for reliance on such an assumption. At all events, such assumption would not excuse her from the duty of looking and *135 acting as a reasonably careful person on the basis of what was there to be seen. From the testimony it can only be concluded either that plaintiff: failed to maintain a reasonable and proper lookout for the approaching car or that, seeing it, she proceeded heedlessly to the point of impact in utter disregard of what she saw and without taking reasonable care for her own safety, under circumstances that would have apprised an ordinarily careful, reasonable and prudent person that a collision was bound to occur. Such conduct has been held to constitute contributory negligence as a matter of law in Malone v. Vining, 313 Mich 315; Boyd v. Maruski, 321 Mich 71; Cioffari v. Blanchard, 330 Mich 518; Denman v. Youngblood, 337 Mich 383; Erickson v. Vendzah, 340 Mich 556; Heger v. Meissner, 340 Mich 586. Accordingly, it cannot be said that a finding, as a matter of fact, by the jury, if made, that plaintiff had failed to establish her freedom from contributory negligence, a prerequisite to her right to recover, was unsupported by or against the great weight of the evidence. We can only assume that the jury so found. Such contributory negligence, if it existed, continued to operate as a proximate cause to the time of impact. Hence, plaintiff was not entitled to requested instructions on the subject of subsequent negligence of defendant. Davidson v. City of Detroit, 307 Mich 420, and cases therein cited; Dulemba v. Tribble, 325 Mich 143. Affirmed, with costs to defendants. Carr, C. J., and Btjtzel, Sharpe, Boyles, Reid, and Kelly, JJ., concurred. Smith, J., took no part in the decision of this case.