Janks v. Ulen Contracting Corp. , 309 Mich. 712 ( 1944 )

The material facts in this case are not in dispute. The defendant's negligence is conceded and the only question is whether plaintiff is guilty of contributory negligence as a matter of law. The result to be attained will be derived from the following facts: On March 8, 1938, plaintiff, William Janks, a traveling salesman, left the village of Kingston at 10:30 a.m. and traveled east on M-46 at a rate of speed between 45 and 55 miles per hour. As he approached the crest of the hill just east of Kingston he was traveling on the south side of the highway. At this time defendant's truck was parked on the south side of the highway facing east, and at a distance of 150 feet east of the crest of the hill. The highway at the point where the truck was parked was 30 feet wide.

John Richter, a witness produced by plaintiff, testified as follows:

"I have driven a car eight years. I've driven in that time, oh, 15,000 miles. My view was good, so I could watch the Janks car from the time it broke over the hill until the collision, and I did watch it. My judgment as to the speed of that Janks' car as it came along there, I would say between 50 and 60 miles per hour. * * * I would not say it was going between 50 and 60 miles an hour when it struck the truck.

"Q. How fast was it going then?

"A. I wouldn't know that. I was watching it. Probably slowed down to about 30 I would think at the time of the collision. When I first saw it coming over the hill it was going, in my judgment, between 50 and 60 miles an hour. It was slowing down the minute it broke over the hill. It started to slow down after it got over the top of the hill. And, it was going 30 miles an hour at the time when it struck the truck, in my judgment. It didn't stop at any time from the time it came over the hill until the collision with the truck. I could tell Mr. Janks applied his brakes in that distance. At what point he started to apply the brakes, I can't remember any more. When the collision came, this truck was forced ahead to the east on the highway and into a ditch that was there, through the ditch into a fence, which would be at the south side of the highway, and there is a break in the fence there now where that collision happened. In my judgment that truck traveled 20 feet from the time of the collision until it stopped. The Janks car at the time of the collision stopped right there. * * * It stopped it right there, facing east. It did not leave the highway. The right-hand side of the Janks' car, the headlight, struck the left rear of the truck, on the left corner. I don't remember that there were red flags on the truck at the rear of it. This was broad daylight, a bright, clear day."

In the case at bar plaintiff had a distance of approximately 267 feet to travel from a point where he could see a part of the parked truck, and yet while traveling that distance he slackened the speed of his car only from 50 to 30 miles per hour. He did not observe the "assured clear distance" rule. (1 Comp. Laws 1929, § 4697, as amended by Act No. 119, Pub. Acts 1933 [Comp. Laws Supp. 1935, § 4697, Stat. Ann. § 9.1565]).

Under the circumstances of this case plaintiff was guilty of contributory negligence as a matter of law and may not recover. Costs to defendants.

NORTH, C.J., and STARR, BUTZEL, and BOYLES, JJ., concurred with SHARPE, J.