In this intersection collision case, defendant Albin Skornia has appealed from denials of his motion for a directed verdict, his motion for a judgment non obstante veredicto, and for a new trial. Consequently the facts must be considered in the light most favorable to plaintiff. Shank v. Lucker, 296 Mich. 705, and Saunders v. Joseph, 300 Mich. 479.
On September 6, 1941, plaintiff Donald MacDonald, then 65 years of age, was driving his car in a westerly direction on Twenty-first street in the city of Bay City at about 11 o'clock a.m. The day was bright, dry and clear. As he approached Van Buren street he slowed down to 15 to 20 miles per hour, approximately 20 to 30 feet from the east line of the intersection. He first looked to the south and saw nothing, then to the north, where he saw Skornia's *Page 372 car approaching in a southerly direction on Van Buren. Neither street is a so-called stop street or preferred over the other. Defendant's car, when first observed, was about 100 feet to the north of Twenty-first street, about 20 to 30 feet beyond a sign reading, "Watch for School Children." Plaintiff determined that he could safely make the crossing and proceeded. He admits that his view was unobstructed, but testified that he was unable to make any estimate of the speed of defendant's car due to the small angle which gave plaintiff almost a head-on view of the car.
At the time of the collision, plaintiff's front wheels had reached the curb line on the west side of Van Buren street, which is 20 to 25 feet wide, as is Twenty-first street. Defendant's car, which theretofore had been traveling in the middle of Van Buren, struck plaintiff's car on its right side about 5 feet from the rear end. MacDonald received several injuries and was confined to his bed for 10 days. He suffered some pain and testified that headaches continued as a result of his injuries from a year to a year and a half after the accident. The trial before a jury resulted in a verdict of $2,000 for MacDonald.
Skornia's negligence being conceded, the questions presented for review are whether plaintiff was guilty of contributory negligence as a matter of law, and was the verdict of the jury excessive.
On cross-examination plaintiff testified as follows:
"Q. Would you say it was going any faster than your car?
"A. I couldn't say whether it was parked or coming because it was pretty near head-on to me.
"Q. But the only observation you made of that car is a glance? *Page 373 "A. And that I had ample time to go across, that is all.
"Q. Can you recall the color of that car?
"A. No, I think it was blue — no. It might not have been, though. I forget what it was. I only just took a snap glance at it, but I passed cars every day."
Defendant argues that this testimony definitely establishes the fact that MacDonald failed to make the proper observation of the approach of Skornia's car, citing Nelson v. Linderman,288 Mich. 186; Lachow, v. Kimmich, 263 Mich. 1 (90 A.L.R. 626, 32 N.C.C.A. 579); Sonfilian v. Wiedman, 291 Mich. 697; Kerr v.Hayes, 250 Mich. 19; Ayers v. Andary, 301 Mich. 418;Huber v. Paquette, 293 Mich. 370; Wimmer v. Colman,307 Mich. 413; and Geeck v. Luckenbill, 215 Mich. 288.
Skornia maintains that these authorities set up the required duties of a driver approaching an intersection, which are (1) to estimate the distance the oncoming car was from the crossing; (2) to estimate the speed of the other car; and (3) to come to a reasonable conclusion based on these observations. He concedes, and the testimony shows, that MacDonald clearly performed the first duty. But he maintains that, by the testimony above quoted, it is shown that MacDonald failed to fulfill the second duty, and therefore could not have fulfilled the third duty.
The authorities mainly depended upon by Skornia can be distinguished and, in so distinguishing them, it becomes clear that, under the quoted testimony of MacDonald, he was not guilty of contributory negligence as a matter of law. In the Nelson,Sonfilian, Ayers and Wimmer Cases there is the similarity that, according to the observation of distance made by the plaintiffs therein, and the observations of speed of the oncoming car made by those plaintiffs, the actual physical facts were such that these observations *Page 374 were incorrect, mainly because the oncoming automobile could not possibly have traveled fast enough to reach the crossing in time for the collision if plaintiffs' observations were correct. These authorities point out that the governing factor is not the length of time which is taken to make the observation, but rather the reasonableness and accuracy of the estimate under the circumstances.
In this instance the small angle of vision which confronted him made the determination of exact speed difficult. However, plaintiff's fairly accurate estimate of distance and his knowledge that defendant was approaching a "Watch for School Children" sign lead to the conclusion that it cannot be said that reasonable minds would not differ as to whether plaintiff was guilty of action not befitting a reasonable person under like circumstances. See Stephens v. Koprowski, 295 Mich. 213;Waling v. City of Detroit, 308 Mich. 163.
But plaintiff does not rest his whole answer to defendant's defense of contributory negligence upon the above theory. There is evidence in the record, which we cannot say is not ample to satisfy a jury, that defendant swerved his automobile to the right as he approached plaintiff's automobile, and if he had continued traveling in the middle of the street, where he was traveling when plaintiff observed him, the collision never would have occurred. This is a two-pronged argument. The first prong is that plaintiff's observation and consequent decision that he could cross in safety was actually a reasonable decision and that, therefore, he was not negligent in this respect. The second prong is that, even if plaintiff were negligent in his observation and determination that he could cross in safety, this negligence was not the proximate cause of the collision, but, rather, it was caused by defendant's subsequent negligence in swerving to the right and into a zone *Page 375 of apparent safety. Grodi v. Mierow, 244 Mich. 511;Swainston v. Kennedy, 253 Mich. 518; Hale v. Rogers,244 Mich. 69; Waling v. City of Detroit, supra; Vukich v. Cityof Detroit, 318 Mich. 515.
But, in any event, there is testimony in the record which would support the jury's determination that at the time MacDonald first saw defendant's car approaching he made the following observations: He observed that there was a "Watch for School Children" sign about 100 feet north of the intersection, that the defendant was some 20 to 30 feet north of this sign, that defendant was driving in the middle of the road, that the defendant's automobile was of a dark color, and that defendant was approaching at such a front end view that it was difficult to make any sort of exact determination of the speed of defendant's car, but that it appeared to be traveling at a reasonable speed. Not only in the light of this testimony does it appear difficult to say that reasonable minds must agree that plaintiff was negligent in making his observation, but, rather, it appears that the jury was justified in finding that plaintiff was not guilty of contributory negligence in this respect.
The amount of damages awarded in the instant case is not so large as to shock the judicial conscience, and, in the absence of such a condition, the verdict in this respect will not be disturbed on appeal. Paton v. Stealy, 272 Mich. 57; Sebring v. Mawby, 251 Mich. 628; Oliver v. Detroit Taxicab Co.,210 Mich. 89, and Teeter v. Pugsley, 319 Mich. 508. Here, the plaintiff suffered considerable pain from fractured ribs and cuts on his body and various bruises for a period of about six weeks, and he also suffered from headaches attributable to the accident for a period of about a year and a half. In Love v. RailroadCo., 170 Mich. 1, a verdict of $2,000 for eight hours' pain and suffering was held not to be excessive; and in Michaels v.Smith, 240 Mich. 671, a verdict of $2,500 *Page 376 for two fractured ribs and a nervous condition lasting for several months was held not to be excessive.
The verdict and judgment below should be affirmed, with costs to plaintiff.
REID and CARR, JJ., concurred with BUSHNELL, C.J.