Spencer v. City of Detroit

I am not in accord with Justice McDONALD'S statement: "Conceding, for the purpose of this discussion, that the plaintiff's decedent was negligent in driving on the track, in view of the approaching street car, his negligence ceased when he attempted to drive off and avoid the collision." Nor can I concur with his holding that the verdict and judgment can be sustained on the theory of subsequent negligence. The negligence of plaintiff's decedent continued until the instant of the impact, because he continued to drive his automobile forward and in the direction in which it collided with the street car. It was a proximate cause of the accident itself. "If there was concurrent negligence, the doctrine of subsequent negligence could have no application. * * * In order that there be intervening negligence on the part of the defendant, it is necessary that the plaintiff's antecedent negligence as a proximate cause should have ceased. The evidence is that it continued up to the time of the impact, that *Page 606 is, assuming that the cars collided on the pavement. The doctrine of subsequent negligence is not applicable."Howell v. Hakes, 251 Mich. 372. To the same effect see Gibbard v. Cursan, 225 Mich. 311. Justice McDONALD calls attention to an inaccuracy in a former draft of this opinion wherein the speed at which decedent was driving his automobile was placed at 18 to 20 miles per hour. Conceding this, and accepting the minimum rate of 10 miles per hour as the rate at which plaintiff's decedent was driving, still the principle by which this case is governed is not rendered less applicable. If, as appears from the facts in Justice McDONALD'S opinion and construed most favorably to plaintiff, decedent was driving only 10 miles per hour and the street car was traveling only 5 miles per hour, and the two were 30 feet from each other when the motorman had his first view of the oncoming automobile, still the impact would occur in less than a second and a half thereafter. The law does not require performance of the impossible. It is a matter of common knowledge that in an emergency an interval of time must be allowed for one's mental faculties to function, then follows performance of the physical acts incident to averting the impending danger, and then a further interval of time intervenes in which the applied mechanical parts — such as brakes — are taking effect. Defendant's motorman not only had to discover that plaintiff's decedent was approaching in the path of the street car, but also that, because of the automobile parked at the curb, plaintiff's decedent could not veer to his right and leave the street car track as the taxicab driver had done the instant before. Until the motorman comprehended this full situation, *Page 607 or in reason should have done so, he could not be held guilty of subsequent negligence, because until that instant the motorman was guilty of no negligence whatever. If the motorman was guilty of negligence thereafter, it was negligence which was concurrent with that of plaintiff's decedent in causing the accident. As this court said in Szost v. Dykman, 252 Mich. 151, so here, the testimony shows no point of time or place at which defendant's negligence became subsequent to that of plaintiff's decedent. Splitting time to the fraction of a second as a basis of applying the doctrine of subsequent negligence is more than either a practical or a just application of this phase of the law will permit. On this record there is neither reason nor justice in permitting recovery against the defendant on the theory of subsequent negligence. The following determination reached by the trial court is sustained by the record: "The fact that the driver of the automobile attempted to swerve his car to the right between the parked car and the street car does not absolve him from contributory negligence. That act, in my opinion, came too late to warrant the court in saying that the negligence of the decedent had ceased to operate. It came at too late a time for the court to say that the motorman should have apprehended that the plaintiff was in a place of peril and should have taken effective steps to avoid the accident." The judgment entered in the circuit court is affirmed, with costs to appellee. POTTER, SHARPE, FEAD, WIEST, and BUTZEL, JJ., concurred with NORTH, J. *Page 608