Opinion
Docket No. 11590.
Decided January 26, 1972.
Appeal from Midland, James R. Rood, J. Submitted Division 3 January 11, 1972, at Lansing. (Docket No. 11590.) Decided January 26, 1972.
Complaint by Joseph F. and Mary Ann Dellaria against Howard and Lottie Tessin for damages for injuries received in an automobile accident. Judgment for defendants. Plaintiffs appeal. Affirmed.
Isackson Neering, P.C., for plaintiffs.
Fortino, Plaxton Moskal, for defendants.
Plaintiff Mary Ann Dellaria was injured when the car she was driving on a favored road collided with defendants' vehicle, travelling on a subordinate or inferior road, at an intersection. Although there was no obstruction to the view of either party for a distance of approximately one-half block before arriving at the intersection, plaintiff driver did not observe defendants' vehicle until both cars were approximately 40 feet from the intersection.
Since defendant Lottie Tessin, being faced with a stop sign, was under a duty to yield the right of way at the intersection, pursuant to MCLA 257.649; MSA 9.2349, the court below instructed the jury that defendants were negligent as a matter of law and that such negligence constituted a proximate cause of defendants' injuries. This ruling has not been challenged.
The issue of plaintiff driver's contributory negligence was left to the jury, and they returned a verdict of no cause of action. Plaintiffs' motion for a judgment notwithstanding the verdict and for a new trial on damages was denied by the trial court.
On appeal, plaintiffs contend that the trial court was in error in failing to instruct the jury that plaintiff driver was not guilty of contributory negligence as a matter of law. We have often stated that the care exercised by the plaintiff at the time of an injury is a question for the jury to determine. Thompson v. Essex Wire Co, 27 Mich. App. 516 (1970). Where there is uncertainty as to this issue it remains a matter of fact for their consideration. Detroit M R Co v. Van Steinburg, 17 Mich. 99 (1868). Where, as here, there is some question as to whether the favored driver failed to exercise due care by failing to notice defendants' vehicle until both cars were approximately 40 feet from the intersection although her view was unobstructed for a considerably longer distance, the question of contributory negligence is one for the trier of fact. Tucker v. Gillette, 6 Mich. App. 210 (1967); Sattiewhite v. De La Cuadra, 31 Mich. App. 117 (1971).
Plaintiffs also contend that the trial court's instructions to the jury were misleading and erroneous. Reading the instructions as a whole, we have concluded that they adequately and fairly informed the jury on the applicable law. Bauman v. Grand T W R Co, 18 Mich. App. 450 (1969); Huntley v. Motor Wheel Corp, 31 Mich. App. 385 (1971).
Affirmed.