Paul W. Silver, charged with negligent homicide, was tried by a jury, convicted and sentenced. He has appealed, and the first question raised in his brief is this: "Is an intersection formed by an undivided roadway and a divided roadway two intersections for the purposes of traffic light ordinances and statutes?"
For reasons hereinafter noted the answer to this question is important in the instant prosecution. *Page 361 The case was tried and submitted to the jury by the trial judge on the theory that in crossing a boulevard a vehicle in effect passes through two intersecting streets, instead of one. In the court's charge to the jury this phase of the law was stated as follows:
"A driver of a car must always use due care, but in a case like Washington boulevard, where there are two strips of pavement, one for traffic going this way and one for traffic coming this way, and it is divided by an island, so-called, or a piece of ground or anything else so that it separates those two strips of pavements, then that is considered two intersections, and assuming that you, say, cross the first strip on the green light or you enter on the green light or amber light — you are too close to stop on the amber light — you must apply the same ruling for the next strip. If you have got a red light before you get to the next strip, you have got to stop, or if the amber light comes on so that you may be reasonably expected to stop, you have got to stop. In other words, treat those two strips of pavement as two separate streets and apply the same rule."
The factual situation of this phase of the case must be noted. About 9:20 p.m., March 22, 1940, defendant was driving his automobile west on Grand River avenue in Detroit. He drove his car across the intersection of Washington boulevard and, either in the crosswalk area on the westerly side of the boulevard or slightly west of the crosswalk, he struck and fatally injured a pedestrian. In the locality of this intersection Grand River avenue is an undivided paved street, 40 feet wide from curb to curb; and Washington boulevard is a divided paved highway, running north and south, the roadway on each side of the boulevard being 50 feet wide, with a parkway 53 feet in width between the two roadways. There is a traffic light on each of the four *Page 362 corners of Grand River avenue and Washington boulevard.
Defendant testified that he entered the intersection while the green light was on and had proceeded nearly to the westerly side before the light changed to amber. Another witness testified that the light changed while defendant was in the easterly traveled portion of the boulevard. There is no testimony that the light was against defendant at the time he first entered the intersection from the east. He did not stop his automobile in the central portion of the boulevard when opposite the island extending to the north. Instead, he continued to drive in a westerly direction to the point of accident and a few feet beyond. The people claimed, and the trial court held, that, if the traffic light at the northwesterly corner of the intersection turned against defendant prior to the time he passed the center or island portion of Washington boulevard, it was his duty to stop at that point until the light again changed to green or "go." This position on the part of the prosecution and the court was taken upon the theory that the two separate lanes of travel on Washington boulevard are, in effect, two separate streets. On the other hand, the contention of the defendant is that, having entered the boulevard from the east while the light was still with him, he had the right to proceed, though cautiously, until he had completed the crossing of the boulevard, notwithstanding the traffic light changed against him after he entered the intersection. In this respect defendant's contention is based upon his claim that, as a matter of law, in traversing the intersection of this boulevard, he crossed only one street, not two.
For the purpose of decision herein it may be said there is no material difference between the applicable provisions of Detroit ordinances and those of *Page 363 State statutes. We quote the following from the statutes:
"The area embraced within the prolongation of the lateral curb lines or, if none, then the lateral boundary lines of two or more highways which join one another at an angle, whether or not one such highway crosses the other";
constitutes an intersection of highways. 1 Comp. Laws 1929, § 4693, subd. (p), as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4693, Stat. Ann. 1941 Cum. Supp. § 9.1561).
"(b) Yellow alone or `caution' when shown together with or following the green or `go' signal. Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety, a vehicle shall be driven cautiously through the intersection. * * *
"(c) Red alone or `stop'. Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at an intersection or at such other point as may be indicated by a clearly visible line and shall remain standing until green or `go' is shown alone." 1 Comp. Laws 1929, § 4700, as last amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4700, Stat. Ann. 1941 Cum. Supp. § 9.1568).
Admittedly the statute, 1 Comp. Laws 1929, § 4697, subd. (a), as last amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4697, Stat. Ann. 1941 Cum. Supp. § 9.1565), provides that any person driving a vehicle on a highway shall drive the same at a careful and prudent speed and have due regard for other traffic then and there upon the highway. But we know of no statutory provision or ordinance in the city of Detroit which requires the driver of a motor vehicle, in crossing a boulevard, to stop in the central portion of the boulevard notwithstanding a *Page 364 traffic light has turned against him after he entered the intersection. Instead, the quoted statute expressly provides that a vehicle so situated "may be driven cautiously through the intersection." It would seem to be inconsistent with the statutory provision and erroneous to hold that the vehicle, after entering with the light or signal, must stop in the center of the intersection and await a change of traffic signals. Nor do we know of any express provision in the law of this State which constitutes the intersection of a boulevard an intersection of two separate highways. It is a matter of common knowledge that the respective sides of a boulevard are not two separate highways. Instead, they bear the same name and the designation of adjacent buildings is the same as on an undivided street, regardless of which side of the boulevard a building may be located.
And it may be further noted that rarely is there a sidewalk along the sides of islands in boulevards but in the sections of the statute last above quoted the requirement to stop is "before entering the nearest crosswalk."
Further, there is no obvious reason why one crossing a boulevard, after having entered the intersection in compliance with traffic signals, should stop in the central portion of the boulevard if there is no approaching cross traffic. Neither the statute nor the Detroit ordinance so requires. In many cases, especially where the line or dividing area of the boulevard is narrow, stopping in the center area might be decidedly hazardous. Our conclusion that the driver of a motor vehicle in passing over the intersection of the boulevard in a legal sense crosses only one street instead of two is in accord with Kienlen v. Holt,106 Cal.App. 135 (288 P. 866), and Schmidt v. City Ice Fuel Co., 60 Ohio App. 29 *Page 365 (19 N.E. [2d] 514). A paragraph from the head notes of the latter case reads:
"Where driver of vehicle proceeding towards intersection across a street on which lanes of traffic are separated by a parkway enters intersection with a green light in his favor, he has a right to continue through in a lawful manner, and if while proceeding through such intersection the light changes, when he is opposite such parkway, he is not required to come to a stop opposite the parkway merely because of the existence of the parkway." (19 N.E. [2d] 514.)
The prosecution attempts to sustain its position by citingBartlett v. Hammond, 76 Col. 171 (230 P. 109); Heintz v.Schenck, 176 Wis. 562 (186 N.W. 610); Geyer v. MilwaukeeElectric Ry. Light Co., 230 Wis. 347 (284 N.W. 1); andMcCombs v. Ellsberry and Fellis, 337 Mo. 491 (85 S.W. [2d] 135). At least for the following reasons, and others need not be noted, none of the last above cited cases are in point with the instant case. None of them involved crossing an intersection controlled by a traffic light or other changing traffic signals. None of them involved the striking of a pedestrian after the motor vehicle had crossed the intersection, as in the instant case. Instead, each of the four cases just above cited arose from a collision of motor vehicles where one or both of such vehicles were travelling upon a boulevard or divided way. In the instant case it does not appear from the record that there was any other vehicle approaching or crossing defendant's line of travel. We think that decision in each of the four cases cited by the prosecution is controlled by the broader traffic regulation that, at all times, the driver of a vehicle must proceed with reasonable care and caution and have due regard for the rights and safety of others in the lawful use of the highway. *Page 366 Obviously, there may be many traffic situations when because of approaching vehicles one who is crossing should stop in the middle or opposite the island portion of a divided thoroughfare. But at least it is clear that no phase of the law pertaining to the proper observation of changing traffic signals was involved in any one of the four cited cases; and we do not consider them at all controlling of the instant case, notwithstanding in some of them the court, in substance, referred to the divided thoroughfare as being the same as two separate streets.
We are mindful that the people prosecuted appellant on the theory that he was negligent not only in running a red light, but also in that the brakes on his machine were defective and that he failed to keep the proper lookout when driving at the time and place of the accident; but, nonetheless, defendant and appellant was entitled to a fair trial which, we think, was denied him because of the error hereinbefore noted.
We are not in accord with a second contention made by appellant which, in substance, is that when an accident occurs outside of the bounds of an intersection, the laws regulating the conduct of drivers within intersections are not applicable. As hereinbefore noted, the striking of the pedestrian in the instant case occurred somewhat westerly and outside of the intersection area; and for this reason appellant asserts that the question of his conduct in having violated "the laws regulating the conduct of drivers within intersections," was wholly immaterial and irrelevant to the prosecution's case. Surely, from the standpoint of disclosing by the testimony whether the injured pedestrian entered the traveled portion of the boulevard against or with a traffic light, it was proper to take the testimony as to the condition of the lights at the time. And, further, any fact or circumstance attending the happening *Page 367 of the accident and from which the jury might be aided in determining whether the accident was caused by defendant's negligence would be admissible.
For the reason above indicated defendant's conviction and sentence are vacated and a new trial granted.
CHANDLER, C.J., and STARR, J., concurred with NORTH, J.