Barron v. City of Detroit

82 N.W.2d 463, 348 Mich. 213, 1957 Mich. LEXIS 413

• Court: Michigan Supreme Court
• Decided: April 22, 1957
• Docket: Docket 83, Calendar 46,943
• Status: Published

Opinions

Black, J.

Our decisions, apparently, are destined in definable instances -to travel a cyclic course. This case, like impending return to-earlier-interpretations of the workmen’s compensation act, becomes as wholesome restoration of tried and dependable first principles of negligence law.

Conventional traffic control signals came to us following advent of the automobile and its paved way of travel. Originally, and I think rightfully so, this Court held that one undertaking to cross a street or highway by signaled permission of such a device is not required — as a .matter of law — to assume that one in charge of a powered vehicle, approaching the device on an intersecting way, will do other than heed the legal command. Indeed, it was said on that occasion that the person engaged in such permitted crossing has good reason to believe he is protected from danger, “by the red light,” so far as concerns traffic approaching such light (Travis v. Eisenlord, 256 Mich 264). The rule is both sensible and necessary. It is taught with religious repetition in home and kindergarten and has .become a generally understood regulation of human conduct.

That we have temporarily deviated from Travis is ■apparent on examination of Morse v. Bishop, 329 Mich 488. That we stand deadlocked,, upon right of trial-by jury in cases of present nature, becomes evident on examination of Ortisi v. Oderfer, 341 Mich 254; and Buehler v. Beadia, 343 Mich 692. It is high time, I think, that we return to the doctrine so enunciated in Travis. Such is at least explainable to the reasonable and intelligent lay mind. Law not so explainable — the Morse Case is an example — -is not good law.

In all negligence cases, brought here to review grant or denial of motion for instructed verdict addressed to contributory negligence, we search the record to determine whether, as a matter, of law, the plaintiff has failed to prove that he exercised ordinary care. Because “ordinary care is the care exercised by the great mass of mankind” (Sonsmith v. Pere Marquette R. Co., 173 Mich 57, 90; 65 CJS, Negligence, § 11, p 392), we shall rarely find the elusive object of our search excepting we arbitrarily insist on doing so from our own “experience, training, and temperament,” the known and unknown variables being what they are (3 Cooley on Torts [4th ed], p 389; Detroit & Milwaukee R. Co. v. Van Steinburg; 17 Mich 99). Our competence in such regard fades when arrayed against the comparably better experience and judgment of 12 citizens of the community who, literally, are “on location.” Who knows best the degree of care most pedestrians — the great mass of mankind — habitually exercise at busy and signal-controlled Detroit intersections? Eight cloistered gentlemen of the law whose direct fact-knowledge must of necessity be derived from secondhand worth of printed pages, or a jury of Detroit housewives, clerks, wage earners and provincial citizens having regular occasion to use such intersections for motoring and pedestrian travel? I answer that in all but the rarest of cases the former are less apt to be rightly equipped to decide such'an issue. Mr. Justice Cooley proceeds with the syllogism this way (p 120 of Van Steinburg report):

“For, when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff’s conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that, if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that to be a question of fact which the first has ruled to be one of law. Indeed, I think the cases are not so numerous as has been sometimes supposed in which a judge could feel at liberty to take the question of the plaintiff’s negligence away from the jury.”

*

The same reasoning, taken from Van Steinburg (see Thompson v. Michigan Cab Co., 279 Mich 370, 374), was adopted many years ago by the Federal supreme court in Railroad Company (Sioux City & Pacific R. Co.) v. Stout, 84 US 657 (21 L ed 745). The following is quoted from pages 663 and 664 of report of the Stout Case:

“Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain.”

This unfortunate accident occurred while the plaintiff was crossing one of the busy street intersections of Detroit. Whether, tested by this motion for instructed verdict, Cora Barron was engaged in the exercise of ordinary care, proceeding as she was with permission and authority of the then green traffic signal, was at best a question upon which reasonable men — I repeat “reasonable men” — might well differ. If so, and such is our heralded guide (Thompson v. Michigan Cab Co., supra), the trial judge was right in refusing to direct a verdict for defendant, and right in his refusal to enter judgment for defendant contrary to the jury’s verdict.

It is said that the trial judge erred in instructing the jury as follows:

“Now, in that connection it is the law that before you start across the street you must look to see if you can do so in safety, but having started on a green light and having looked to make sure whether you can cross in safety, and then having started to cross on the green light, it becomes a question of fact for the jury to determine, whether if the light is still green at the time of the accident, whether or not an ordinary, prudent person would have looked again to the south to see where the streetcar was. That becomes a question of fact for the jury. * * *

“If you find, as I say, that she started on the green light; that she started across, she looked and saw the streetcar slowing down, and I think all of the testimony is that the streetcar stopped, the streetcar conductor himself said he stopped, and she looked and saw the streetcar slowing down, she started, on the green light, the light was green, then it is np to the jury to determine as a matter of fact what the ordinary, prudent person would have done under those circumstances. Would he have looked again or relied on the green light and proceeded across without looking again.”

In view of what has been said above, I discover no reversible error in the charge as quoted.

I vote to affirm, with costs to plaintiff, and for due interment of Morse v. Bishop, supra; and Boyd v. Maruski, 321 Mich 71.

Smith and Edwards, JJ., concurred with Black, J. Kelly, J., concurred in affirmance.' . ' Voelker, J., took no part in- the decision of this base. -

It will be noted that Justice Cooley was dealing with another case where a pedestrian was struck, on a railroad track, under circumstances where the problem of contributory negligence was (p 119) ■“complicated by the necessity of taking into account the 2 sets of ■circumstances affecting the conduct of different persons” — the engineer (or, as here, the motorman) on the one hand and the pedestrian on the other. See discussion of Van Steinburg in Clark v. Shefferly, 346 Mich 332, 336; and Ohman v. Vandawater, 347 Mich 112, 116, 117.