Berk v. Blaha

T. M. Burns, J. Plaintiffs were injured when the car in which they were riding failed to stop for a red flasher signal at an intersection and collided with defendants’ vehicle.* At the trial defendant was the only witness that testified as to how the accident happened and he was called by plaintiff for cross-examination pursuant to the provisions of MCLA § 600.2161 (Stat Ann 1962 Rev § 27A.2161). Although his testimony revealed that he did not see the plaintiffs’ vehicle as it approached the intersection, he did indicate that he was traveling below the posted speed limit for that area; that he slowed his vehicle as he approached the intersection which from his direction bore a flashing amber light; and that he applied his [86] brakes immediately upon seeing the vehicle which was then about 20 feet in front of him. After the defendant testified the trial court granted defendant’s motion for a directed verdict of no cause of action. Plaintiffs argue on appeal that a question of fact as to defendant’s negligence was raised as a consequence of the testimony that should have been submitted to the jury. We do not agree. The standard to be applied in cases of this type is well stated in McGuire v. Rabaut (1958), 354 Mich 230, 236: “The favored driver is thus not required to have his car under such control as to be able to avoid collision with a subordinate driver coming illegally into his path. At what point, then, does the second principle (that of exercising reasonable care for his own protection) come into operation, requiring him to take steps to avoid collision with a subordinate driver? Only at that point when his continuing observations (which he must make, despite the fact that he is on an arterial highway) reveal, or should reveal to the reasonably prudent man, an impending danger. It is at this time that his duty of care with respect to the subordinate driver arises, and his post-observation negligence, or lack thereof, is measured by his actions after this point. Consequently, in the case before us the favored driver was entitled to assume, as he approached the Hastings intersection, that his right-of-way would not be contested by a subordinate driver. He was entitled to rely upon this assumption until it became clear to him (or, until, as a reasonable man, considering pertinent surrounding circumstances of traffic and terrain, it should have been clear to him) that a subordinate driver was going to challenge or obstruct his right-of-way. At this point his duty to attempt to avoid the impending collision began. It is from this point onward, and not before, with respect to a crossing [87] subordinate driver appearing in his path, that we scrutinize his acts to determine whether or not he is guilty of negligence for failure to act as a reasonably prudent person, and, in all fairness to him, we must measure his conduct in the light of the emergency then presented, if not of his making.” See also: Churuckian v. LaGest (1959), 357 Mich 173, 182-184; Haney v. Frederick v. Gentsch, Inc. (1962), 368 Mich 354, 359-362; and DePriest v. Kooiman (1967), 379 Mich 44. Defendant had a right to assume that plaintiff would stop at the signal as required by law (MOLA § 257.615 [Stat Ann 1968 Rev § 9.2314]). Further, from the testimony in this case there is no indication that the defendant was guilty of negligence from the point that he observed that plaintiff’s car was not going to stop. Therefore, there was no question of fact that could be presented to the jury and the trial court did not err in granting the directed verdict. Affirmed. Fitzgerald, P. J., concurred. Footnotes [*] Plaintiffs’ driver breached bis plain duty under MCLA §§ 257.614, 257.651 (Stat Ann 1968 Rev §§ 9.2314, 9.2351) to stop and' yield right of way to the defendant.