Kiefer v. Fink

Clark, J. The automobiles of the parties were in collision at an intersection of the highways. Plaintiff was injured. Defendants, when plaintiff rested his case, had directed verdict, and he brings error. The question is, Was plaintiff guilty of contributory negligence as a matter of law? Plaintiff was driving south on a trunk line highway. Defendants were driving east on a cross road, not a trunk line. The view at the intersection was ample and unobstructed. The cars were approaching the intersection at the same time. Plaintiff had in mind at the time that he had the right of way. We quote: “When motor vehicles approach an intersection of a State trunk line highway and any other highway at the same time, the vehicle proceeding on the State highway trunk line shall have the right of way.” Act No. 96, Pub. Acts 1928, § 5a. Plaintiff saw the other car. He applied brakes and reduced speed. Defendants did likewise. Plaintiff, observing defendants’ car, and thinking that his right *276 of way was to be accorded him, increased speed to cross the intersection. Defendants did likewise. Each thought, apparently, that the other would give way. The collision resulted. The opinion of the trial judge that plaintiff was guilty of contributory negligence as a matter of law is based, chiefly, on the case of Geeck v. Luckenbill, 215 Mich. 288. But that case was decided before the passage of the statute above quoted, and was based upon section 4817, 1 Comp. Laws 1915. Said Act No. 96 of 1923 introduced a new element. This was discussed fully in Pline v. Parsons, 231 Mich. 466, which need not be quoted. The trial judge did not have the opinion in that case before him, as it was delivered after the trial of the case at bar. The statute, last cited, applies here. The cars were approaching the intersection at the same time. It was defendants’ duty to give way to plaintiff who was on the favored road and had the right of way. Of course, the statute did not relieve plaintiff of the duty to use due care. Plaintiff applied brakes and reduced speed when approaching the intersection. When plaintiff saw that the defendants were doing the same thing, was he guilty of contributory negligence, as a matter of law, in then and there assuming that defendants intended to recognize his superior right under the statute, and in then and there increasing his speed to cross the intersection? We decline so to hold. See Amedeo v. Railway Co., 215 Mich. 37. The record before us presents a case of actionable negligence for the jury and the question of contributory negligence of plaintiff was also for the jury. Judgment reversed. New trial granted. Costs of this court to appellant. Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and McDonald, JJ., concurred.