
    MILLER v. CITY OF DETROIT.
    1. Street Railways — Automobiles—Contributory Negligence as Matter op Law.
    Motorist who stopped about 25 or 30 feet from single streetcar track where he saw or should have seen streetcar some 200 feet away approaching at speed of 30 to 35 miles per hour was guilty of contributory negligence as a matter of law in attempting, at speed of 5 to 8 miles an hour, to cross ahead of rapidly approaching streetcar.
    2. Same — Automobiles—Subsequent Negligence — Evidence—Increase op Speed.
    In action by administratrix of estate of motorist who attempted to cross streetcar track ahead of rapidly approaching streetcar, evidence failed to establish subsequent or discovered negligence on part of defendant’s motorman because of some testimony that speed of streetcar was increased but failing to show how much.
    Functions of court and jury in determining contributory negligence, see 2 Restatement, Torts, § 476.
    Appeal from Wayne; O’Hara (Chester P.), J.
    Submitted April 13, 1944.
    (Docket No. 72, Calendar No. 42,727.)
    Decided May 17, 1944.
    Case by Emily Miller, administratrix of the estate of Michael Miller, deceased, against City of Detroit, Department of Street Railways, for damages resulting from accidental death of decedent. Verdict and judgment for plaintiff. Defendant appeals.-
    Reversed and remanded for entry of judgment for defendant.
    
      Dennis H. Dwyer (Calvin Bigelow, of counsel), for plaintiff.
    
      
      Leo A. Sullivan (Rodney Baxter, of counsel), for defendant.
   Boyles, J.

This is an automobile-streetcar collision case. The only question involved is whether plaintiff’s decedent was guilty of'contributory negligence as a matter of law.

On Saturday, May 24, 1942, at about 2:30 in the afternoon, plaintiff’s decedent was driving his automobile west on Palmer avenue in Detroit. Palmer avenue and Grandy avenue intersect at right angles. Grandy is a narrow street with a single streetcar track in the center. On approaching Grandy avenue plaintiff’s decedent stopped his automobile back of the east crosswalk of Grandy, about 25 or 30 feet east of the streetcar track. He then started up and attempted to cross Grandy, traveling from 5 to 8 miles per hour. A streetcar was approaching the intersection from the south, on Grandy avenue, and when plaintiff’s decedent was about 25 feet from the streetcar track this streetcar was 200 feet south of the intersection and approaching at the speed of 30 to 35 miles per hour. There was no other traffic, and nothing to prevent plaintiff’s decedent or the motorman of the streetcar from each seeing the other or from judging their rate of speed. Neither one of them slowed down, both the streetcar and plaintiff’s decedent’s automobile continued at approximately the same rates of speed, and the inevitable collision occurred at about the center of the intersection of Palmer and Grandy avenues.

The collision was witnessed by two entirely disinterested persons, both of whom were called and testified as witnesses for the plaintiff. There is no essential disagreement as to the facts. Plaintiff’s decedent, traveling about 25 feet at 5 to 8 miles per hour, would reach the center of the intersection at approximately the same time as the streetcar, traveling 200 feet at 30 to 35 miles per hour, would reach the same place. There was some testimony that plaintiff’s decedent looked. "Whether or not he did so is immaterial under the circumstances. He either saw, or should have seen, that an accident must occur unless either he or the streetcar stopped or sloped down. In attempting to cross Grandy avenue ahead of the rapidly approaching streetcar, plaintiff’s decedent did not use the care and caution that a reasonably prudent driver is expected to use under the same circumstances. Both parties were guilty of negligence, and the contributory negligence of plaintiff’s decedent bars recovery.

There was some slight testimony that the speed of the streetcar was increased, but no showing as to how much. Plaintiff does not base her claim for recovery on subsequent or discovered negligence, and the proofs fail to establish it. Either defendant’s motion for directed verdict, or for judgment non obstante veredicto after the jury verdict for plaintiff, should have been granted.

Reversed and remanded for entry of judgment for defendant.

North, C. J., and Starr, Wiest, Butzel, Bush-hell, Sharpe, and Reid, JJ., concurred.  