Boyd v. Maruski

Notwithstanding Justice REID'S opinion for reversal, careful review of this record seems to *Page 76 disclose that the trial judge ruled correctly in directing a verdict in favor of defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law. For the purpose of decision herein defendant's negligence will be assumed. Plaintiff's own testimony, which must be construed in its most favorable light to plaintiff, is controlling of the instant case. Her testimony discloses the following: Before she left the bus on which she was a passenger, it and other northbound traffic on Wyoming avenue had been stopped by the red traffic light at Puritan avenue. While the light was still red, plaintiff, by passing between the bus and an automobile which had stopped just north of the bus, reached the middle of Wyoming avenue. At that time the red light was against the Wyoming avenue traffic; and defendant's taxi, headed south, was standing at the northwest corner of the intersection. Plaintiff made an observation as to that being the situation. She then proceeded with the green light across Wyoming avenue, going west along the line of the crosswalk on the south side of Puritan avenue. She continued to observe the traffic light, but she did not testify that the light had not changed before she was struck by defendant's vehicle. After making her observation when in the middle of Wyoming avenue, plaintiff did not look again at defendant's taxi while she continued crossing Wyoming avenue. We quote from her testimony: "Q. When you got to the middle of the road did you then go on across the road? "A. I went right on, of course. "Q. Then you told this court and this jury that at that point when you saw this car stop you didn't see it again until you got hit by it after you left the middle of the road? "A. I walked straight on until I got hit. *Page 77 "Q. You didn't see it (the taxi) again from the middle of the road until it hit you? "A. He was standing when I was in the middle of the road. "Q. You didn't see it come toward you after that? "A. No. "Q. You didn't look to see if it was coming toward you, did you? "A. I wasn't looking at the taxi. I was looking at the light. "Q. Did you look to see if it was coming toward you when you were crossing the road? "A. No, I didn't look to see." Since the traffic signal had turned red against the traffic on Wyoming avenue before plaintiff left the bus, in the exercise of ordinary care she was bound to anticipate that the light might change before she could complete crossing Wyoming avenue. But regardless of whether the light did change while plaintiff was in the act of crossing Wyoming avenue, nonetheless even with the traffic light in her favor, she was bound to use such care as an ordinarily careful and prudent person would use in looking for approaching traffic. Under her own testimony plaintiff failed to make such observation, and in that respect she was guilty of negligence which was a proximate cause of her accident. The law in this respect is not unlike the law pertaining to the duty of each of two drivers of automobiles who approach an intersection simultaneously. In Huber v. Paquette, 293 Mich. 370, a headnote reads: "Provisions of general regulation of automobile traffic contained in city ordinance and State statute, stating that when two vehicles enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, grant no fixed rights regardless of existing circumstances as persons are required to *Page 78 exercise reasonable care to save themselves from injury by reason of apparent negligence of another." There is testimony that Wyoming avenue was approximately 40 feet wide; and some testimony that plaintiff was struck by the left hand front fender of defendant's taxi, and some that she was struck by the right front portion of the taxi. It was negligence as a matter of law for plaintiff to have continued crossing from the middle of Wyoming avenue to the point of the accident without making any further observation as to vehicular traffic approaching her from the north. Her failure to exercise such care resulted in her walking into the path of defendant's approaching vehicle. In its essential aspects the instant case is much like Long v. Garneau, 319 Mich. 291, 299, where Justice BOYLES, speaking for the Court, said: "It is equally obvious that if plaintiff had looked to the right before taking her last few steps south of the center line of Kalamazoo street, she could have seen defendant's automobile before walking into its side. It was plainly there to be seen." While in factual background they are not on all fours, the following cases are indicative of the law which controls decision in the instant case. DeJager v. Vandenberg, 288 Mich. 136;Sloan v. Ambrose, 300 Mich. 188; Malone v. Vining,313 Mich. 315. In the Malone Case a paragraph of the headnote reads: "Before crossing a street, a pedestrian must (1) make proper observation as to approaching traffic, (2) observe approaching traffic and form a judgment as to its distance away and its speed, (3) continue his observations while crossing the street, and (4) exercise that degree of care and caution which an ordinarily careful and prudent person would exercise under like circumstances." *Page 79 Plaintiff in support of her contention that an issue of fact was presented by the testimony, relies upon Smarinsky v.Markowitz, 265 Mich. 412, wherein decision turned on the issue of subsequent negligence. That issue is not presented herein. The cited case is not in point. In support of her position plaintiff also urges our decisions in Moore v. Noorthoek, 280 Mich. 431; Neesley v. Lord, 297 Mich. 163; and Werker v.McGrain, 315 Mich. 287. But in each of these cases there was testimony tending to sustain the claim that the plaintiff was free from contributory negligence; whereas in the instant case the testimony of plaintiff herself discloses that she was guilty of negligence which contributed to the accident. In the WerkerCase we said: "Also, there was testimony tending to show that she (plaintiff) was free from contributory negligence. * * * The conflicting testimony, together with the physical facts and circumstances, clearly presented a question of fact for the jury's determination." My Brother quotes briefly from Guina v. Harrod, 275 Mich. 393, and Petersen v. Lundin, 236 Mich. 590. In the former case the view of both the plaintiff and the defendant was obstructed as each approached the point of accident, and this was a justification for the holding that as to the issue of plaintiff's contributory negligence an issue of fact was presented. In the Petersen Case the issue of fact as to contributory negligence of plaintiff's decedent turned upon this. There was no eye witness to that factual aspect of the case, and, hence, as a matter of law, plaintiff's decedent was presumed not to have been guilty of contributory negligence. The irrelevancy of that decision to the case at bar is quite obvious. The trial court ruled correctly in granting defendant's motion for a directed verdict at the close of *Page 80 plaintiff's proofs. The judgment entered in the circuit court will be affirmed, with costs to appellee. SHARPE, BOYLES, DETHMERS, BUTZEL, and CARR, JJ., concurred with NORTH, J.