Tucker v. Gillette

Fitzgerald, J. Plaintiff brought an action in 1964 to recover for injuries resulting to his ward from an 'automobile accident allegedly caused by defendant’s negligence. Plaintiff’s ward, hereinafter referred to as plaintiff, at the time of the accident, was proceeding north in his automobile on Franklin street, a through street in the city of Flint with a posted speed limit of 30 miles per hour. Defendant, in her automobile, approached the Franklin street intersection heading west on Second street, which is controlled by a properly placed stop sign at the intersection with Franklin street. As plaintiff entered the intersection, defendant failed to observe the stop sign, and her automobile struck plaintiff’s automobile in the side, causing the *213 plaintiff to lose control, to hit a tree, and to sustain injuries. Evidence at trial conflicted on several material points. The officer testified that plaintiff told Mrir at the accident scene that he was driving 45 miles per hour, but agreed on cross-examination that, at tbe time, plaintiff was dazed and bleeding, and observed, “Well, it is possible for people to say mo:st-. anything when in a dazed condition.” . :' Tbe plaintiff testified be was traveling 30 miles ■ per hour, was knocked unconscious, and recall's nothing of what be may have said immediately after tbe accident. On one occasion defendant claimed that, just after' tbe accident, plaintiff said that be was going too fast. But on cross-examination, she denied that plaintiff said anything on this occasion. An eyewitness testified that immediately after tbe accident’ tbe plaintiff was stunned and bleeding. Plaintiff testified that just before tbe accident he observed tbe defendant approaching tbe intersection at about 20 miles per hour and slowing down. Ac-'' cording to bis own testimony, plaintiff made nó’ attempt to reduce his speed or to stop and did not'' see tbe defendant’s automobile again until the collision. • ■ Plaintiff testified that be was aware of tbe exist- > ence of tbe stop sign controlling Second street at?' tbe Franklin street intersection and expected the? defendant to observe it. Defendant testified that': she saw tbe stop sign only when she was directly-beside it, she bit tbe brake, “became confused or something,” then released tbe brake and accelerated into tbe intersection, veering to tbe right as she:, struck tbe plaintiff’s automobile. : Tbe jury was charged that, as a matter of law, “defendant was negligent” and that “such negli-: *214 gence was a proximate cause of tbe injuries.” Tbe court instructed the jury that, “If you find that tbe plaintiff was guilty of contributory negligence, your deliberations are at an end and your verdict would be no cause for action.” After some deliberation, tbe jury asked tbe court, “If tbe plaintiff were negligent to any extent to what extent would be still be eligible, according to tbe law to receive payment for damages?” Tbe court answered, “Only if you find that tbe plaintiff’s contributory negligence is not a substantial factor for bringing about tbe barm. There are two elements to it, to contributory negligence, both tbe existence of negligence and tbe fact that such negligence is a proximate cause of bringing about tbe barm, both contributory negligence and causation.” After further deliberation, tbe jury found no cause of action. Plaintiff’s motion for a judgment non obstante veredicto was denied and judgment was entered for defendant. Tbe plaintiff appeals, asking this Court to direct the trial court to enter a judgment non obstante veredicto in plaintiff’s favor and to order a new trial on tbe issue of damages only. Three issues are raised. First, plaintiff argues that under tbe facts of this case, excessive speed cannot, as a matter of law, be a proximate cause of tbe accident so as to bar plaintiff’s recovery on grounds of contributory negligence. Plaintiff reasons that regardless of bis. speed he would not have been harmed at all bad defendant stopped at the stop sign. We can only agree. This establishes defendant’s negligence as a cause of plaintiff’s injuries, and tbe jury was so instructed. Tbe crucial question at trial and on appeal, however, concerns plaintiff’s contributory negligence and its proximate causative relation to the accident. *215 There was evidence from which the jury could have found that plaintiff was driving at an excessive speed contrary to a local traffic ordinance. If they so found, this would be evidence of plaintiff’s negligence according to law. Hodgdon v. Barr (1952), 334 Mich 60, 71. Speed was not the only fact at issue bearing on plaintiff’s contributory negligence. The jury could consider the question of plaintiff’s diligence or negligence in keeping a proper lookout for traffic approaching from either side. Plaintiff noticed defendant approaching the intersection and then ignored defendant’s approach until she hit him. Factually, this is a stronger case for jury determination of plaintiff’s contributory negligence than was DeVries v. Owens (1940), 295 Mich 522, where the Supreme Court held that plaintiff’s contributory negligence was a jury question on facts very similar to those present here. Plaintiff cites no persuasive authority for the proposition that on this issue and that of his excessive speed, contributory negligence, and proximate causation were not questions for the jury. In Gregg v. Goodsell (1962), 365 Mich 685, the plaintiff could not see defendant’s approach because his view was obstructed. Under the facts of this case, contributory negligence and causation are questions of fact to be determined by the jury. Plaintiff cites certain cases which suggest that arterial right-of-way must be absolute in favor of the policy of rapid transit, that one having the right-of-way may assume, in the absence of visual evidence to the contrary, that the operator of a vehicle approaching an intersection on a stop street will observe the traffic sign and stop. But manifestly this cannot be treated as a matter of law. Uniformly, the cases have allowed the jury *216 - to decide this as a matter of fact, e.g., Breker v. Rosema (1942), 301 Mich 685 (141 ALR 867). The policy argument in favor of rapid transit is not as -persuasive inside the city limits and, in any case, is not a convincing argument for an absolute right-of-way. Along with an increased lawful speed necessarily goes a heavier burden of diligence in main- ■ taining a vigilant lookout for automobiles approaching the traffic artery from either side. We are in accord with the Supreme Court’s ma.jority reasoning in Krause v. Ryan (1955), 344 Mich 428, followed in DePriest v. Kooiman (1966), 2 Mich App 431. The jury is the only institution known to our law capable of resolving this question. 'There was ample evidence going to plaintiff’s speed and proper lookout for a jury to find causative contributory negligence on the part of the plaintiff. . We shall not disturb that finding. Seymour v. Carr (1943), 307 Mich 109. ■i Plaintiff further argues that the court did not - clearly instruct the jury upon specific request. The i. instruction complained of was responsive to the "¡'question put and required no repetition or explanation.' Schreiner v. American Casualty Company (1965), 1 Mich App 43. Judgment is affirmed, with costs to appellee. Quinn, P. J., and T. Gr. Kavanagh, J., concurred.