Sivak v. SWAN ICE CREAM COMPANY

56 N.W.2d 273, 335 Mich. 651, 1953 Mich. LEXIS 560

Opinion

Boyles, J.

Plaintiff, widow and administratrix of1, the estate of Charles L. Sivak, deceased, sued the defendants for damages arising out of an automobile! collision causing Ms death. On trial before the court without a jury, plaintiff had judgment and defendants appeal.

The accident occurred shortly after noon, July 7, 1950, at the intersection of Irish road with Wilson road in Genesee county. Wilson road had been designated by the State highway department and marked by signs as a 5-mile detour for M-57, a trunk line highway. It was marked by “M-57” signs to indicate its character as a trunk line detour. At the place of the collision it runs east and west, intersected by Irish road which runs north and south.

Plaintiff’s decedent was driving a 1941 automobile west on said M-57 detour, at about 45 to 50 miles per hour. His wife, the plaintiff, was with him. Defendant Kraatz was driving a truck south on Irish road, at about 40 miles per hour. There was no stop sign on Irish road at the intersection. He was familiar with this intersection, having driven this road about twice a week for more than a year. He knew he was approaching a “blind” intersection. He did not stop, but before he arrived at the intersection he slowed down to about 20 miles per hour, then speeded up to 25 miles per hour in crossing and was entering the intersection when he saw plaintiff’s decedent’s car coming from the east on the detour, about 50 to 60 feet away. His truck was hit on the left side by the automobile. His view toward the east on the M-57 detour as he entered the intersection was limited to about 50 to 75 feet by a bank and trees. He testified he knew it was a “dangerous” corner, a “blind’.’ intersection. He testified:

“The reason I changed gears at the intersection of 'Wilson road is because it is a blind intersection. .1 have seen a lot of close calls before. I realized that, it was a hazardous place so I slowed down from about; 45 miles per hour to 20 miles per hour. When I got, witMn 20 feet north of the intersection, I was going; about 20 miles per hour. When I was 20 feet from Wilson road I could not see to the east and for that reason I didn’t look east until I got further down the highway. I looked until I got to where you could see. It would be a little over the edge of the road to see down the road. Just when you get past the intersection you can see; there are trees there and as soon as you get by there you can see. At the time I could see the rear end of my truck was north of the north line of Wilson road, or M-57 and the front end of my truck was in the intersection. I looked to the left first and I didn’t see any ears coming. He wasn’t there in sight. From that point you cannot see a long distance down Wilson road, or M-57. * * * I could see probably 50 or 75 feet down Wilson road, or M-57. # * *

“Q. Well, so, not seeing anybody you continued to drive in a southerly direction at 20 miles an hour ?

“A. I picked up a little, about 25.

“As I crossed the intersection I increased my speed to about 25 miles per hour and I was going about 25 miles per hour when I was hit.”

The trial court held that as a matter of fact the defendant driver was guilty of negligence and that the plaintiff’s decedent was not guilty of contributory negligence. The question before us is whether, in either respect, the testimony clearly preponderates in the opposite direction. For reversal the appellants urge that the detour was not an officially designated trunk line highway, that no official temporary-detour had been established, and that in the absence-of a stop sign the defendant driver was not required by law to stop his truck at the intersection.

In 1945, the State highway commissioner legally established as a part of State trunk line M-57 an extension commencing on said trunk line at a point near the east end of M-57 at the northeast corner of section 23 in Thetford township, Genesee county, and thence east 4 miles to join trunk line M-15 about a mile north of Otisville. At the same time the State highway commissioner directed that pending its construction a temporary detour location should be made and be maintained as such. Such a temporary route was thereupon established, to join M-57 with M-15. Starting at the northeast corner of said section 23, where M-57 then ended, it was established and maintained on gravel roads running 1 mile south of the starting point and then east 4 miles to M-15 at Otisville. Maintenance was started and continued by the State highway department on this detour, M-57 signs put up at many places, some stop signs, curve signs, intersection signs, arrows and other road markings to indicate the detour. No stop sign was placed on Irish road at its intersection with the M-57 detour, where this accident occurred. The determination of the State highway commissioner was approved by the highway advisory board and the State administrative board, and the temporary trunk line detour where the accident occurred was legally established a part of trunk line M-57. The detour became a part of the main road.

“When State highway department closes road only partly, but it is open to use of public, as matter of right, for purposes of vehicular travel, it remains highway (CL 1929, § 4693[n]), and department may make regulations as to its use which are binding on public if they are posted on road (sections 4629, 4630). *

“Detour established by State highway department under authority of CL 1929, § 4629, becomes part of main road, and part temporarily cut off remains highway if open to travel, subject to such use and regulations as may be adopted and posted, but it loses special character attached to road from which it was taken.

“Generally, automobile which is required to stop at crossing yields right-of-way to other car approaching on intersecting street.” Shoniker v. English (syllabi), 254 Mich 76.

We need not consider whether it was the duty of the defendant driver to bring his vehicle to a stop at the intersection of Irish road with the M-57 highway detour because' of absence of a stop sign. * It was his duty not to enter the intersection without making proper observation to see whether a vehicle was approaching on the detour and about to enter the intersection. He knew it was a dangerous intersection, could not see traffic approaching close by on the detour, yet entered át an admitted speed of 20 miles per hour without proper observation for other traffic, and accelerated his speed to 25 miles per hour in the intersection. Before entering the intersection he could have seen to the top of a hill 360 feet distant to his left on the M-57 detour, from which direction plaintiff’s decedent was then within his view, had he been prepared to stop upon entering the intersection without attempting to cross. The automobile of plaintiff’s decedent was there to be seen, approaching the intersection on the detour. The defendant driver’s vision to his left on the detour was limited to 60 or 75 feet when he was less than 100 feet from the intersection. The decedent was looking toward the intersection and plaintiff, riding with her husband-, the decedent, saw the defendants’ truck enter the intersection when she was only about 50 feet away. Whether the defendant driver and plaintiff’s decedent were guilty of negligence were properly considered as questions of fact. Slivensky v. Wayne, 307 Mich 443.

The issues of the defendant driver’s negligence and whether plaintiff’s decedent was..guilty of con tributory negligence were decided by tbe court on hearing the case without a jury. The court concluded that as a matter of fact the defendant driver was guilty of negligence which was a proximate cause of the accident, and that plaintiff’s decedent was not guilty of contributory negligence'. Both were proper to be considered by the trial court and decided as questions of fact and the testimony does not clearly preponderate in the opposite direction. For cases in point, see Adams v. Canfield, 263 Mich 666; Leader v. Straver, 278 Mich 234; Ault v. Kuiper, 279 Mich 1; Pulford v. Mouw, 279 Mich 376; Arnold v. Krug, 279 Mich 702; Potter v. Felidan Sisters Home for Orphans, 281 Mich 101; Breker v. Rosema, 301 Mich 685 (141 ALR 867); Slivensky v. Wayne, supra.

Appellants claim that plaintiff’s testimony as to speed and distance should not have been received. Its credibility was for the trial judge. Other questions raised by appellants do not change the result.

Affirmed. ¡

■ Adams, Butzel, Carr, Btjshnell, S-harpe, and' Reid, JJ., concurred with Boyles, J. Dethmers, O. J., concurred in the result.

* While said section 4629 referred to was repealed, it was re-enacted, and last amended by PA 1937, No 221 (CL 1948, § 750.497 [Stat Ann 1951 Cum Supp § 28.765]).

* But see PÁ 1949, No 300, § 651 (CL 1948, § 257.651 [Stat Ann 1952 Rev § 9.2351]). . . ;