Beauchamp v. Olsen

Danhof, J.

On February 21, 1967, plaintiff Doris Beauchamp was operating an automobile on Detroit Street in the City of Flint. Detroit Street is a four-lane through street. Defendant Edward Lamont Dodge was operating an automobile on Gracelawn Avenue which intersects with Detroit Street. The two cars collided and this litigation ensued. The jury found no cause for action and the plaintiffs have appealed. We reverse and remand.

The trial court granted summary judgment for the plaintiffs on the issue of defendant Dodge’s negligence and the defendants do not challenge this ruling. The issue in this case is the question of Mrs. Beauchamp’s contributory negligence. The defendants offered two theories of contributory negligence, (1) that Mrs. Beauchamp was driving too fast and failed to keep a proper lookout, and (2) that she was negligent in driving in the right-hand lane.

The claimed negligence in using the right-hand lane is based on the fact that the streets were bordered by high snow banks which rendered the *325cars invisible to each other until they were quite close. We do not believe that a person can be held negligent for driving in the right-hand lane merely because there are high snow banks in the area. Ordinarily a person has every right to make use of the right-hand lane. Indeed, we have a statute which makes it his duty to do so. MCLA 257.642; MSA 9.2342. On the facts of this case Mrs. Beau-champ could not be found negligent under the defendants’ second theory.

The instructions given by the trial court convey the impression that the jury could find contributory negligence on the defendants’ second theory. The plaintiffs requested an instruction stating that there could be no negligence under this theory. The trial court refused to give the instruction and thereby committed reversible error. The burden placed on the favored driver is not as heavy as that imposed by the trial court. He need exercise only reasonable care. As was said in McGuire v Rabaut, 354 Mich 230, 235 (1958):

"It is clear, at the one extreme, that the favored driver is not permitted to lower his head, close his eyes, and charge blindly through intersections on the theory that such is his 'right’ simply because he is the favored driver. It was Justice Holmes who said that 'such words as "right” are a constant solicitation to fallacy.’ The favored driver’s rights are not so broad. It remains his duty to exercise reasonable care under the circumstances.”

The plaintiffs argue that the trial court erred in refusing to direct a verdict on the question of contributory negligence and thus a new trial should be limited to the question of damages. We cannot accept this contention. The defendants’ first theory remains in the case. The plaintiffs have not pointed to any testimony that would conclusively *326establish a lack of contributory negligence. In this regard we note that we have only a partial transcript before us. We cannot weigh evidence that we do not have. On remand the new trial shall be on both liability and damages.

Reversed and remanded; no costs, neither party having prevailed in full.

Van Valkenburg, J., concurred.