Sloan v. Ambrose

Wiest, J. December 11, 1939, at about 1 o’clock in the afternoon, plaintiff, while crossing Main street in the village of Carson City, was struck by the left fender of defendant’s automobile and injured. Upon trial by jury plaintiff had verdict for $550. Defendant’s motions for directed verdict and a new trial on the ground that plaintiff was guilty of contributory negligence were denied. The day was bright and view of traffic unobstructed. Main street runs east and west and plaintiff was using the crosswalk in the business district at the east intersection of Main and Mercantile streets. Plaintiff testified that, before she stepped from the curb to cross the street, she looked at the *190 suspended traffic light at the intersection and it was in her favor and an automobile from the east had come to a stop at the intersection, so she started to cross, passed in front of the stopped automobile and proceeded without again looking at the traffic light or making further observation of traffic; that, when about the center of the street and, whether south of the center or not she could not tell exactly, defendant’s automobile, coming from the west, struck her. "While she was crossing, the traffic light changed. It is true, she testified on cross-examination: “Q. If you had looked to the west you could have seen this carl “A. No, sir. I did look. “Q. You did look and didn’t see it? “A. No, sir.” But on re-examination by her own counsel she stated: “When I testified that I looked to the west and didn’t see this car I referred to when I looked at the light and that was before I crossed in front of the Blackmer car and was when I was on the north edge of Main street just before I started across. At that time I looked to the west and didn’t see any car coming.” The court instructed the jury: “I think I stated that in substance, and that is this, that if while she was passing from one side of the street to the other and while she was making her progress along that line if the light changed in the meantime, she continued to have the right to pass to the other side of the street before the defendant could start his car in such a way and to such an extent as to collide with her. She had the right, in other words, having started to cross the street and uninterruptedly proceeding for that purpose, she *191 had the right to cross to the other side of the street even though the light did change in the meantime.” This instruction was erroneous in wholly failing to include the duty of plaintiff to use reasonable care and in ignoring her own testimony showing total want of care on her part. The rule, applicable to plaintiff’s own testimony, is stated in DeJager v. Vandenberg, 288 Mich. 136 (6 N. C. C. A. [N. S.] 341), and cases there cited. See, also, Beaulieu v. City of Detroit, 293 Mich. 364. Traffic lights change and one starting to cross a street under their protection is still required to observe the change, if any, removing the protection and to employ reasonable care in proceeding into the path of released traffic. The drivers of released traffic must observe pedestrians caught by change of light and exercise reasonable care to avoid striking them. In the case at bar if the driver of defendant’s automobile was guilty of negligence plaintiff was guilty of contributory negligence under her own testimony as a matter of law. Under the evidence plaintiff may not invoke the rule of subsequent negligence. “To apply the theory of subsequent negligence, the plaintiff’s negligence must have come to rest and defendant must have discovered such negligence in time and with the ability to avoid the accident and have failed to do so. Wells v. Oliver, 283 Mich. 168; Szost v. Dykman, 252 Mich. 151; Cline v. Killing-beck, 288 Mich. 126.” Gallagher v. Walter, 299 Mich. 69, 77. The motion of defendant for a directed verdict should have been granted. The judgment is reversed, without a new trial, and with costs to defendant. *192 Chandler, C. J., and Boyles,, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred.