Swainston v. Kennedy

Fead, J. Plaintiff recovered damages for injuries sustained in a collision between an automobile, driven by her husband and in which she was riding, and one owned by defendant company, driven on its business by defendant Kennedy. The question is whether the court should have directed a verdict for defendants on the ground of their freedom from negligence or of contributory negligence of plaintiff’s husband, attributable to plaintiff. The accident occurred at the intersection of Houston and Fourth streets in Muskegon in the afternoon of a clear, dry day. Each street is paved 30 feet wide. Plaintiff’s husband drove south on Fourth *520 street at the rate of 12 to 14 miles per hour. At the first opportunity and when 40 to 45 feet north of the crossing, he looked to the west and saw defendant’s car 250 feet from the intersection. He then looked to the left. He thought there was no danger, and proceeded without varying his speed and without again looking to the right. His car was struck by defendant’s at the rear wheel when the front end was about at the south curb line of the crossing, was turned completely around and thrown across the street to the east curb. Defendant’s car passed on, made a right-hand turn at the east corner, jumped a five inch curb and ran over the sidewalk upon a lawn. Defendant Kennedy did not see the Swainston car until he was from 6 to 10 feet from it. Under plaintiff’s testimony, Kennedy drove about four times as fast as Swainston, because he traveled four times as far in the same time. The case is not one for the discussion of authorities but for the application of the familiar rules that each driver was bound to make the observations at the intersection which, and to see and to do what, an ordinarily prudent person would have made, seen, and done, and each could assume that the other would conduct himself as a reasonably prudent driver, unless, until, and in so far as a reasonably prudent person would have apprehended to the contrary. The jury could fairly find Kennedy guilty of negligence in driving at an excessive rate of speed, neglecting to make proper observations, and failing to accord plaintiff’s car the right of way as the first to enter the intersection. Swainston’s observation to the right was not prolonged. He was not sure that the car he saw, which the jury could find was defendant’s, was moving, *521 although he thought it was. But his decision to proceed was based upon the belief that defendant’s car was approaching and was supported by the fact that it was much farther from the intersection than his own and by his qualified right to assume that Kennedy would approach at a lawful rate of speed, that he would make proper observations, and, seeing plaintiff in the intersection, would accord him the right of way. While these considerations did not, as a matter of law, justify Swainston in proceeding, they cast the issue of his care in so doing into the realm of fact for the jury. His failing to look to the right a second time did not establish his negligence as a matter of law. Lefevre v. Roberts, 250 Mich. 675. Judgment is affirmed, with costs. Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred.