Henry v. Sanderson

North, J. This case arises out of an automobile accident which occurred at the intersection of two highways. Plaintiff had judgment,' and the sole question presented for review is appellant’s claim that the trial court should have directed a verdict against plaintiff on the ground that he was guilty of contributory negligence as a matter of law. Both the question of defendant’s negligence and plaintiff’s contributory negligence were submitted to the jury. In appellant’s brief his negligence is admitted. In reviewing the question presented, we must accept the version of all controverted facts *565 which, is most favorable to appellee. At the time of the accident, Angnst 23, 1930, he was a man 58 years of age. He had driven motor vehicles for 13 years, and to some extent he was familiar with the intersection of the so-called town-line road and State trunk line highway No. 49, where the accident occurred in the forenoon of the day noted. The town-line road was a gravel highway, as was also trunk line No. 49, the latter at this point being 24 feet in width, and being a preferred highway. Plaintiff approached the intersection from a westerly direction. At a point 28 feet west of the west line of the graveled portion of the trunk line there was a “stop” sign. Defendant was approaching the intersection from the south, driving at a rate of more than 50 miles per hour. When opposite the stop sign plaintiff shifted into first gear and proceeded at a speed of seven or eight miles per hour towards the trunk-line road. Because of an unusually obstructed view to the south, this intersection is obviously a dangerous corner. When opposite the sign plaintiff could see at most only a distance of two or three rods down the easterly side of the highway on which defendant was approaching. He made such an observation, and while proceeding slowly toward the trunk-line road he looked to the north and then again just as he was practically at the west line of the gravel he looked to the south on the trunk-line road. Prom this point he had a view which extended 10 or 12 rods down the easterly side of the trunk line. He could not see as far down the middle or westerly side of this highway. His limited view was due to the fact that vision in the direction from which defendant was coming was obstructed by an embankment at or near the southwesterly corner of this intersection more than five *566 feet in height above the center of the road, by a row of evergreen trees on the westerly side of highway No. 49 on which trees there were drooping limbs and under which there was a growth of grass and weeds. Visibility to the south was further impaired by the fact that there was a down grade in that direction on No. 49. At his last point of observation before entering upon the traveled portion of trunk-line No. 49 plaintiff was able to make a diagonal view in a southeasterly direction to a point 10 or 12 rods down the easterly side of the highway. Both he and his wife, who accompanied him, made such observation and saw no vehicle approaching. There was testimony supporting plaintiff’s theory that defendant, as he approached this intersection, was driving on his left-hand side or in the middle of the highway instead of on his right-hand side as required by statute (1 Comp. Laws 1929, § 4703); that he was driving at an excessive rate of speed without having his car under control; and further, that he was not keeping a proper lookout. In this connection, defendant testified he did not see plaintiff until he was within 10 or 12 feet of him, and further, “I did not see him before because it was not my place to see him.” Also, that defendant believed he had a right to pass over this intersection “Just as fast as I was a mind to.” After making the southerly observation at the westerly edge of the traveled portion of the trunk line, plaintiff proceeded at the rate of seven or eight miles per hour, looking in the direction he was going, and before he made another observation in a southerly direction his automobile was struck by that of the defendant at or near the middle of the intersection. The first plaintiff knew of defendant’s approach was when the latter was 30 to 50 feet *567 distant from plaintiff’s machine and plaintiff’s wife called his attention thereto. In asserting plaintiff’s contributory negligence defendant stresses the fact that the undisputed proof shows plaintiff did not bring his automobile to a full stop before attempting to cross the trunk-line highway. Notwithstanding this fact, under the circumstances of this case, it cannot be said that because of his failure to come to a full stop plaintiff was guilty of negligence as a matter of law. A different situation would be presented if plaintiff had observed a vehicle simultaneously approaching the intersection and had failed to come to a full stop. The provision of the statute (1 Comp. Laws 1929, § 4713, subd. [e]) is: “All vehicles approaching the intersection of a State trunk line highway, outside of any city or village having local regulations, shall come to a full stop whenever a vehicle is approaching the intersecting highway and shall reduce speed to a maximum of ten miles per hour at all other times before entering or crossing such highway.” If, as we must accept the fact to be under plaintiff’s testimony, defendant by reason of his approaching this intersection on the wrong side of the trunk-line road prevented plaintiff from observing his approach, defendant cannot charge plaintiff with contributory negligence as a matter of law because of his failure to observe defendant’s oncoming car. Plaintiff was not bound to anticipate that defendant would operate his automobile in a negligent manner. Instead, plaintiff was entitled to assume that any other person on the highway would be proceeding in a lawful manner until plaintiff had knowledge to the contrary or by the exercise of *568 reasonable care would have had knowledge or notice to the contrary. At most, under the circumstances of this record, plaintiff’s contributory negligence was a question of fact for the jury, and it was so submitted. This case is within and controlled by the principles of law announced in Pline v. Parsons, 231 Mich. 466; Kiefer v. Fink, 236 Mich. 274; Lefevre v. Roberts, 250 Mich. 675, and Swainston v. Kennedy, 253 Mich. 518. Judgment is affirmed, with costs to appellee. Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred. Footnotes [As] to rights and duties at intersection of arterial (or other favored) highway and nonfavored highway, see annotation in 58 A. L. R. 1197, 1201.