(concurring). I concur in the opinion of Chief Justice Reid on the ground that plaintiff’s decedent was guilty of contributory negligence as a matter of law.
The following statutes and traffic ordinance are factors in deciding the issue in this case:
*596CL 1948, § 256.321 (Stat Ann 1947 Cum Supp § 9.1581), provides in part:
“(b) The driver of a vehicle upon a highway shall yield the right-of-way to ambulances, police and fire department vehicles, when the latter are operated upon official business and the drivers thereof sound audible signal by bell, siren or exhaust whistle. This provision shall not operate to relieve the driver of a police or fife department vehicle from the duty to drive with due regard for the safety of all persons using the highway.”
CL 1948, § 256.322 (Stat Ann 1947 Cum Supp § 9.1582), provides in part:
“(a) Upon the apro'ach of any police or fire department vehicle giving audibile signal by bell, siren or exhaust whistle, the driver of every other vehicle shall immediately drive the same to a position as near as possible, and parallel to the right-hand edge or curb of the highway, clear of .any intersection of highways, and shall stop and remain in such position unless otherwise directed by a police or traffic officer until the police or fire department vehicle shall have passed.”
Section 26 of the general traffic ordinance of the city of Midland provides:
“Right of way for police or fire vehicles.
“(a) Upon the approach of any vehicle of the fire department, police department or police authorized vehicles, when on an emergency call sounding a siren or hell, all operators of other vehicles shall immediately drive as closely as possible to the right-hand curb and stop and shall not follow any vehicle or apparatus of the fire department or police department until same shall he at least 500 feet away or has stopped.”
Under the above it was the duty of plaintiff’s decedent to yield the right of way to the fire depart*597ment if he knew or should have known in the exercise of ordinary prudence that the fire truck was approaching in response to a call. In the case at bar decedent was approaching from the north and the fire truck was approaching from the west. "When decedent was 70 feet north of the intersection he could have seen a vehicle approaching from the west when it was at least 200 feet from the intersection. There is positive evidence from witnesses east and south of the intersection that they heard the siren on the fire truck. Grover Ritenour and wife were traveling south on State street at the time of the collision. Mr. Ritenour heard the siren when he was 2 blocks north of the intersection and Mrs. Ritenour when they were.l block north of the intersection; he also heard the siren after the collision. He also testified that when he was 90 feet north of the intersection, the fire truck was 95 feet west of the intersection and plaintiff’s decedent was just entering the intersection with the green light in his favor.
Plaintiff offered evidence of witnesses who were in the vicinity of the intersection and did not hear the siren or hear it until the fire truck was within 100 feet of the intersection.
In the case at bar it clearly appears that the siren on the fire truck was in operation while approaching the intersection and was not discontinued until after the collision. The negative testimony of witnesses that they did not hear the siren is not sufficient to make an issue of fact as to whether the siren could be heard a sufficient distance to warn plaintiff’s decedent that a fire truck was approaching.
In 66 ALR 1538, it is stated:
“This rule is recognized in Michigan where it is held that where the testimony of witnesses on the part of the plaintiff does not show that they were listening or otherwise giving heed and attention to an oncoming train, testimony that they did not hear *598the signals does not take the case to the jury, where there is positive testimony by other witnesses, some of them disinterested, that signals were given. Stewart v. Michigan Central R. Co. (1898), 119 Mich 91; Britton v. Michigan Central R. Co. (1899), 122 Mich 359; Tuttle v. Briscoe Manfg. Co. (1916), 190 Mich 22 (12 NOCA 909) (truck); Lambert v. Minneapolis, St. Paul & Sault Ste. Marie R. Co. (1920), 209 Mich 107.”
See, also, Colborne v. Detroit United Railway, 177 Mich 139.
The record shows that when plaintiff’s decedent was 77 feet north of the center of the intersection he had an unobstructed view to the west of 432 feet from which point the fire truck would have been clearly visible to anyone who looked as well as being audible to listeners. In the case at bar we must conclude that plaintiff’s decedent could have seen and heard the approaching fire truck in sufficient time to stop his car and avoid a collision. The fact that plaintiff’s decedent had the green light in his favor did not give him the statutory right of way. The general rules of the road relating to speed and right of way no not apply to fire trucks answering á call.
Plaintiff’s decedent was guilty of contributory negligence as a matter' of law in entering the intersection with a fire truck approaching from his right traveling at'a speed of 40 miles per hour or more and then at a distance of 95 to 100 feet west of the intersection. The trial court was in error in refusing to grant defendants’ motion for a directed verdict made at the close of all testimony.
The judgment is reversed without a new trial. Defendants may recover costs.
Boyles, North, Dethmers, Butzel, Carr, and • Bushnell, JJ., concurred with Sharpe, J.