Green v. Wallace

135 N.W.2d 408, 376 Mich. 113, 1965 Mich. LEXIS 201

• Court: Michigan Supreme Court
• Decided: June 7, 1965
• Docket: Calendar 39, Docket 50,456
• Status: Published

Opinions

Dethmers, J.

Plaintiff sued for damages resulting from personal injuries sustained when, as a pedestrian, he was crossing a street and was struck by an automobile owned and operated by defendant. During pendency of suit defendant took plaintiff’s discovery deposition. Thereafter defendant filed answer denying his negligence and liability and raising the affirmative defense of plaintiff’s contributory negligence. At the same time, defendant moved for summary judgment in his favor on the ground that plaintiff’s deposition disclosed that there was no genuine issue of fact. It was defendant’s position that plaintiff’s deposition showed him to be guilty of contributory negligence as a matter of law. Defendant’s motion was granted. Plaintiff appeals.

Plaintiff’s deposition contained his testimony to the effect that he was 39 years of age when, as a pedestrian, he undertook to cross the 2 southbound lanes of a 4-lane, divided highway. Each lane was 10 feet in width. There was a 3-foot island between the 2 northbound and 2 southbound lanes. The time was 7:15 a.m., on March 30, 1962, the weather was good, and it was broad daylight with no need for cars to have headlights on. He was about to cross the highway from west to east. At about 3 feet west of the west edge of the pavement he stopped, looked to his left, north, and saw a car coming. He waited for it until it passed. He looked north again, had a clear, unobstructed view, and saw no traffic approaching from the north within 3 blocks, 900 to 1,050 feet. He then walked onto the pavement and started to cross. His testimony, once, was that he crossed the 10-foot westerly lane and went another 7 feet to within 3 feet of the center divider and, at another time, that he had crossed the 10-foot westerly lane and gone about 3 or 3-1/2 feet into the easterly lane before he again looked to the north and saw defendant’s car, for the first time, approaching him in the easterly lane within 5 feet north from him, just an instant before it struck him. All this appears from plaintiff’s deposition. There is no dispute on the facts in this connection.

Plaintiff crossed at a point on the street other than at a crosswalk at an intersection. Chapter 7, § 7.6, of the ordinances of the city of Southfield, where the accident occurred, required a pedestrian crossing at such a place to yield the right-of-way to all vehicles on the highway. Chapter 7, § 7.9, forbade crossing at the place where plaintiff did so, there being no marked crosswalk there.

The trial court concluded that plaintiff’s failure to look north, to his left, and' see defendant’s car approaching from the time plaintiff was standing 3 feet west of the westerly edge of the pavement until he had progressed across an additional 10 feet of the westerly lane and then either 3 or 7 feet more across the easterly lane, a total of either 20 feet or 16 feet, depending on which of plaintiff’s 2 versions is accepted, in broad daylight, on a clear day and dry pavement, with no obstruction or unusual circumstances or unexpected actions to excuse him, rendered plaintiff guilty of contributory negligence as a matter of law. Accordingly, on the basis of plaintiff’s own testimony, viewed in the light most favorable to him, the court entered the summary judgment for defendant.

Plaintiff’s reasoning is, essentially, that, despite what he concedes was the rule in what he terms “the older opinions of this Court” to the contrary, under the later holdings of this Court whenever a pedestrian is struck on the street by a motor vehicle the question of his contributory negligence is necessarily one of fact for the jury, never one of law for the court. Cited for this by plaintiff are the following: McKinney v. Yelavich, 352 Mich 687; Vandervelt v. Mather, 353 Mich 1; Shaw v. Bashore, 353 Mich 31; Steger v. Blanchard, 353 Mich 140; Baker v. Gushwa, 354 Mich 241; DeLuca v. Wonnacott, 358 Mich 319; Huhta v. Maloney, 363 Mich 348; Knickerbocker v. Samson, 364 Mich 439.

With respect to some of these cases, in seeking to distinguish them on the facts, the defendant points out that (1) in Huhta the accident happened at night and there were proofs that defendant was driving without lights, and so plaintiff’s failure to see defendant’s car was held to present a question of fact as to his contributory negligence; (2) in Knickerbocker a heavy fog, coupled with defendant’s excessive speed, was held to present a question of fact as to plaintiff’s contributory negligence in failing, to see defendant’s car; (3) in McKinney the question was rendered one of fact by tbe fact that plaintiff was crossing a street at a crosswalk at a complex 6-way street intersection, starting out under the protection of a green signal light which was still in his favor when defendant struck him; (4) in Vandervelt plaintiff was crossing in a crosswalk with a green traffic light in his favor and it was held that he did not have to anticipate that defendant would run a red light; (5) in Steger plaintiff attempted to cross a highway in a school zone, heavily congested with traffic and school buses and she could not see defendant’s approaching vehicle until it crested a hill a short distance away. In contrast, defendant points out that in the case at bar there was no darkness nor fog, no traffic congestion, nothing unusual or unexpected to prevent or make it difficult for plaintiff to see defendant’s car earlier or to excuse him for failure to do so. Consequently, defendant contends, even under those decisions it could not be said that plaintiff’s contributory negligence here presented any question of fact, but only one of law.

Defendant might have gone on to consider also the other cases cited by plaintiff. In Shaw the accident occurred on a hazy, misty evening when visibility was poor. In Balter plaintiff had his truck in a driveway, about to enter but stopped just at the edge of the highway pavement when struck. Defendant’s car came over the crest of a hill at a high, unlawful rate of speed and the sides of the pavement were slushy. In Be Luca the plaintiff was a 9-year-old child who took one step out from behind a parked car, at the same time looking in the direction from which defendant approached, and she was immediately struck. All of these cases are equally distinguishable on the facts from those at' bar in a controlling respect. Here there were no unusual or extenuating circumstances excusing plaintiff’s failure to see defendant’s car until it was too late.

Despite the comfort which plaintiff’s brief writer professes to take, in this respect, from what he considers to be the abandonment of the older and the following of a new trend in the later decisions of this Court, a perusal of such recent cases as Hett v. Duffy, 346 Mich 456, and Shumko v. Center, 363 Mich 504, touching this subject, discloses that even today in this Court there is still some life left in the old theory of contributory negligence as a matter of law under certain circumstances. We think they exist here and that, accordingly, the summary judgment in favor of defendant should be affirmed, with costs to him.

Kelly and O’Hara, JJ., concurred with Dethmers, J.