
    SLINGERLAND v. SNELL.
    1. Automobiles — Burden of Proof — Negligence—Contributory Negligence.
    In action "by administratrix of estate of motorist, fatally injured in an automobile collision at a street intersection, plaintiff who showed defendant was guilty of negligence also has burden of proving her decedent was free from contributory negligence.
    2. Same — Right of Way at Intersections Not Absolute.
    Right of way of driver of automobile on right at street intersections under 1 Comp. Laws 1929, § 4712, is not an assurance of safety nor an absolute right in all conditions, both drivers being required to use due care, as driver on the right cannot continue to assume that the one on the left will accord him right of way when the circumstances would indicate the contrary to a reasonable person.
    
      3. Same — Driver Heed to Have Seen What He Should Have Seen.
    Plaintiff’s decedent who drove car into intersection where he was hit by defendant’s car which approached from decedent’s left is chargeable with what he could have seen, that is, defendant’s car approaching intersection without showing any indication of coming to a stop, hence, barred from recovery by his contributory negligence.
    Bushnell and McAllister, J J., dissenting.
    Appeal from Wayne; Miller (Guy A.), J.
    Submitted January 18,1938.
    (Docket No. 123,
    Calendar No. 39,861.)
    Decided April 4, 1938.
    Case by Ellen Z. Slingerland, administratrix of the estate of William Slingerland, deceased, against John Snell for fatal injuries received by plaintiff’s decedent in a collision of automobiles at an intersection. Judgment for plaintiff. Defendant appeals.
    Reversed, without a new trial.
    
      Eulett & Coash, for plaintiff.
    
      Stewart A. Ricard, for defendant.
   Sharpe, J.

This case arises out of a collision between two automobiles at the intersection of Marquette and Stanton avenues in the city of Detroit. In circuit court before the trial judge, plaintiff had judgment and defendant appeals.

The collision occurred in the afternoon of December 24, 1936. Marquette avenue runs in an easterly and westerly direction and intersects Stanton avenue at right angles. Each street is paved for 26 feet in width. Neither street is superior to the other, there being no stop signs at this intersection. On the afternoon in question, plaintiff’s decedent and one Edward Liphardt were each driving an automobile. When they reached Marquette avenue, they drove westerly on this avenue at a speed of about 20 miles per hour for four blocks preceding the intersection where the collision occurred. The deceased maintained a distance of 50 to 60 feet in the rear of the car driven by Edward Liphardt. As they approached the intersection, Edward Liphardt proceeded across safely, but the car that plaintiff’s decedent was driving collided with a car driven by defendant proceeding in a northerly direction on Stanton avenue; and as a result of this collision, plaintiff’s decedent was injured and died December 27, 1936.

Subsequently, action was brought by the administratrix of the estate of William Slingerland. The cause came on for trial, and, at the close of plaintiff’s testimony, the defendant made a motion for judgment of no cause of action which was denied. Later the trial court entered a judgment in favor of plaintiff. The principal question presented is the contributory negligence of plaintiff’s decedent. From our examination of the record, we conclude that defendant was guilty of negligence, but plaintiff must also show that he was free from contributory negligence before a judgment may be entered in his favor. See Faustman v. Hewitt, 274 Mich. 458.

In addition to the facts heretofore noted the record shows that each driver approached the intersection on his proper side of the street and traveling at approximately 20 miles per hour; that the cars collided near the center of the intersection; that the left front end of plaintiff’s car sustained greatest damage, while the damage to defendant’s car was on its right side; that from measurements taken a person in a car parked 30 feet east of Stanton on Marquette, midway between the center of the street and the north curb, could see a distance of practically 143 feet south of Marquette on Stanton; that at the distance of 40 feet east of Stanton one conld see about 100 feet south of Marquette on Stanton; and at a distance of 50 feet east of Stanton one could see a distance of 80 feet south on Stanton.

Assuming that plaintiff’s decedent entered the intersection first, we think he was guilty of contributory negligence which bars recovery. It is apparent that when plaintiff’s decedent entered the intersection, the defendant was at, or almost to, the intersection without showing any indication of coming to a stop.

In Knight v. Merignac, 281 Mich. 684, we said:

“The rule as to one who drives into an intersection without looking and is hit by another car over which he has the right of way was stated in Kerr v. Hayes, 250 Mich. 19, as follows:

“ ‘These eases, however, also point out that the statutory right of way is uot an assurance of safety, nor an absolute right in all conditions, but that both drivers must use due care. A driver cannot continue to assume that the one on the left will accord him right of way when the circumstances would indicate the contrary to a reasonable person.’ ”

In the case at bar we do not know what plaintiff’s decedent saw, but he could have seen the defendant approaching from his left and is chargeable with what he could have seen.

In Zuidema v. Bekkering, 256 Mich. 327, we said:

“It will not do to say that plaintiff’s husband looked down the Byron Center road to the left before attempting to cross the pavement and did not see the automobile of defendant approaching. He must be held to have seen what he should have seen, which there was nothing to prevent him from seeing, and if, as contended by plaintiff, he stopped his automobile, looked to the left, and did not see what was plainly to be seen, the approach of defendant’s automobile, be was guilty of contributory negligence wbicb would bar plaintiff’s recovery.”

Tbe judgment is reversed, without a new trial. Defendant may recover costs.

Wiest, C. J., and Butzel, Potter,- Chandler, and North, JJ., concurred with Sharpe, J.

Bushnell, J.

(dissenting). I cannot concur in Mr. Justice Sharpe’s opinion because I believe bis conclusions are contrary to our bolding in Thompson v. Michigan Cab Co., 279 Mich. 370. In tbat case tbe court was unanimous in its approval of tbe statement in Railroad Co. v. Stout, 84 U. S. 657, outlining tbe respective functions of tbe judge and jury in determining tbe question of contributory negligence. Tbe court was also unanimous in its bolding tbat tbe record presented a statement of facts upon which reasonable men might fairly arrive at different conclusions and tbat tbe trial court was not in error in bolding tbat tbe question of plaintiff’s driver’s negligence was a matter for tbe jury.

It is only when but one reasonable conclusion can be reached from tbe proofs tbat plaintiff’s contributory negligence is a question of law. Halzle v. Hargreaves, 233 Mich. 234, 237.

In tbe instant casé tbe trial judge, sitting without a jury, held that plaintiff’s decedent’s negligence was a question of fact. 0 We may differ with tbe conclusions of tbe trial judge but tbe record does not present such a clear case of want of ordinary care as to justify tbe bolding, as a matter of law, tbat decedent was negligent.

Tbe judgment should be affirmed, with costs to appellee.

McAllister, J., concurred with Btishnell, J. 
      
       See 1 Gomp. Laws 1929, § 4712.—Reporter.
     