SCHILLINGER
v.
WYMAN.
Docket No. 25, Calendar No. 45,023.
Supreme Court of Michigan.
Decided September 5, 1951.*161 Rolland E. Barr, for plaintiff.
Alexander, Cholette, Buchanan, Perkins & Conklin (Edward D. Wells, of counsel), for defendant.
DETHMERS, J.
On a dry, clear, midsummer night plaintiff's decedent left a country tavern on the west side of a 4-lane, 40-foot paved highway, intending to walk to some tourist cabins located directly across the road. There were no other buildings in the vicinity. Lighted signs in front of the tavern and cabins illuminated the road somewhat. Decedent's eyesight was good. Some distance to the south the highway curved gradually, but there was a clear, unobstructed view of the payment in that direction for several hundred feet. Defendant was driving her automobile north in the most easterly lane. Her lights were on. No other automobiles or traffic were in sight in either direction. A collision between decedent and defendant's left front fender occurred in the most easterly lane, blood and skid marks indicating that at the instant of impact decedent was on the most westerly part of that lane. He was killed instantly. Shortly after the accident defendant told an officer that she had not seen decedent until she was practically upon him. A witness for plaintiff testified that from what he learned he knew that defendant saw the accident. There were no other eyewitnesses.
Defendant was present at trial but was not called as a witness. Plaintiff offered no proofs concerning decedent's actions from the time he left the tavern until the accident. There is nothing in the record from which it might be inferred that he was free from contributory negligence. Plaintiff has contended, *162 however, both on trial and on appeal, that it should be held that there were no eyewitnesses and that, therefore, decedent must be presumed to have been free from contributory negligence. As authority he cites Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am St Rep 441); Gilbert v. Ann Arbor R. Co., 161 Mich. 73; Gates v. Beebe, 170 Mich. 107; Parsons v. E.I. Du Pont De Nemours Powder Co., 198 Mich. 409 (LRA1918A 406, 16 NCCA 625); Clark v. Lawrence Baking Co., 240 Mich. 352; Russo v. City of Grand Rapids, 255 Mich. 474; Petersen v. Lundin, 236 Mich. 590; Hinchey v. J.P. Burroughs & Son Co., 240 Mich. 273; Wilkins v. Bradford, 247 Mich. 157; Gillett v. Michigan United Traction Co., 205 Mich. 410; Fairchild v. Detroit, Grand Haven & M.R. Co., 250 Mich. 252; Delfosse v. Bresnahan, 305 Mich. 621; Fenn v. Mills, 243 Mich. 634; and Gembolis v. Rydeski, 258 Mich. 521. Defendant, on the other hand, urged on trial, as now, that under the authority of such cases as Black v. Ambs, 307 Mich. 644; Foote v. Huelster, 272 Mich. 194; Buchel v. Williams, 273 Mich. 132; Collar v. Maycroft, 274 Mich. 376; Kalbfleisch v. Perkins, 282 Mich. 27; Peck v. Hampel, 293 Mich. 252; and Faustman v. Hewitt, 274 Mich. 458, defendant must be held to have been an eyewitness, removing the presumption and leaving the question of decedent's freedom from contributory negligence a subject for proof by plaintiff. There having been no such proof, the trial court granted defendant's motion for a directed verdict of no cause for action. Plaintiff appeals.
In seeking to reconcile the holdings in the above cases cited by plaintiff with those cited by defendant, it might seem that, with certain exceptions, a possible generalization might be drawn to the effect that the availability of the presumption to a plaintiff's case depends upon the failure of the surviving defendant to have seen enough of decedent's actions *163 prior to and at the time of the accident to constitute defendant an actual eyewitness. The application of that test will hardly serve, however, to reconcile the adoption of the presumption in Petersen v. Lundin, supra; Fenn v. Mills, supra; and Hinchey v. J.P. Burroughs & Son Co., supra, with its rejection in Collar v. Maycroft, supra, and Faustman v. Hewitt, supra, the defendant in each of those cases, as in the instant case, having seen the decedent but an instant before the accident when it was too late for either to avoid it. That the amount of opportunity for and length of time during which defendant observed decedent prior to the accident, if at all, are factors to which but scant, if any, significance attaches, in the judgment of this Court, would appear from our failure to so much as touch upon or mention them in our opinions in Foote v. Huelster, supra, and Peck v. Hampel, supra, this Court having contented itself in the latter case with the observation that defendant was presumed to have seen decedent before the accident and, hence, to have been an eyewitness, thus removing the presumption of decedent's due care. A further possible explanation of the apparently irreconcilable conflict in the holdings of this Court on the subject may be that, with the single exception of Delfosse v. Bresnahan, 305 Mich. 621, in which defendant had admitted before trial that he had not seen decedent at all prior to the accident, the above cited cases relied upon by plaintiff antedate Foote v. Huelster, supra, and that the latter represents a turning point in the views of this Court, supporting, as do our subsequent decisions, the contention of defendant that the presumption is not indulged if the surviving defendant saw decedent at all before the accident. Under the latter holdings it would follow in the instant case that plaintiff is not entitled to the benefit of the presumption in view of the testimony that defendant saw decedent when she was *164 practically upon him and the further testimony that she saw the accident.
If it were to be assumed, however, that defendant did not see decedent at all before the accident and that there were, accordingly, no surviving eyewitnesses whatsoever, the presumption of decedent's freedom from contributory negligence should nevertheless be deemed to have been overcome and rebutted by proofs of the physical facts in this case, which show decedent to have been guilty of contributory negligence as a matter of law. This, we think, follows from our holdings in Elrich v. Schwaderer, 251 Mich. 33; Waterstradt v. Lanyon Dock Co., 304 Mich. 437; Thomas v. New York Central Railroad Co., 267 Mich. 396; Rushford-Surine v. Grand Trunk Railway Co., 239 Mich. 19; Tomczyk v. Detroit, Grand Haven & M.R. Co., 267 Mich. 474; Pomeroy v. Dykema, 256 Mich. 100; Russo v. City of Grand Rapids, 255 Mich. 474; and Richardson v. Williams, 249 Mich. 350. The night was clear, visibility and decedent's eyesight were good, he had a clear, unobstructed view of defendant's approaching car for several hundred feet, there was no other traffic to confuse him, the highway was lighted somewhat by lights in front of the tavern and cabins, and defendant's lights were on. Decedent could and should have seen defendant's car approaching; it did not suddenly swerve toward him, but approached and collided with him in its own outer lane. Decedent either failed to make proper observation before entering the east lane or, having made it, failed to see what was plainly there to be seen, viz., defendant's car approaching him or, having seen it, negligently took his chances and proceeded in the face of known danger, with the result that he walked into the side of or stepped immediately in front of defendant's left-front fender. In any such event, viewing the testimony in the light most favorable to plaintiff, decedent *165 was guilty of contributory negligence as a matter of law. Heckler v. Laing, 300 Mich. 139. Had he given due heed and taken the precautions which an ordinary, careful and prudent person would have taken under like circumstances, it is inconceivable that the collision could have occurred.
Affirmed, with costs to defendant.
REID, C.J., and BOYLES, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.