Bard v. Baker , 283 Mich. 337 ( 1938 )

Plaintiff and her husband, about 5:45 p. m., December 10, 1935, were traveling south in an automobile on the westerly side of highway No. 555, approaching what was to be new highway M-46 then under construction by defendants, a copartnership. Plaintiff was returning from the home of her mother and stepfather one-half mile north and west of the intersection of highway No. 555 with new M-46. Plaintiff and her husband had talked about the new road, saw automobiles of workmen parked on highway No. 555 on the way to her mother's home in the morning. Plaintiff's husband discussed the highway with Mr. LaVoy, a garage man at Riverdale, that morning. On the morning of December 10, 1935, John Baker arranged and managed the moving of six mats from Remus to the junction of new M-46 with No. 555. These mats, used for footings for excavating machinery working in soft ground, were made of plank two inches thick, three-ply, put crosswise, to hold heavy machines so they would not sink in the muck. They were approximately six inches thick, four feet wide, and 14 and 16 feet long, and weighed between 1,500 and 2,000 pounds apiece. The trucks which carried them were 1 1/2-ton trucks equipped with dump bodies about six feet wide and eight feet long. Two 14-foot mats and one 16-foot mat were loaded on top of each other crosswise of the dump bodies just back of the cab of each truck. About one and one-half feet more of these mats was overhanding on the right side than on the left. A red flag about one and one-half feet square was fastened at the left front end of the lower mat on each truck. Two trucks were used in moving them. One Marzolf drove a Dodge truck and one Daymon drove a Chevrolet truck. On the way from Remus, Baker drove ahead of the trucks and at Riverdale met two of his men, Viswat and Compson, whom he picked up and took along with him to the intersection of new M-46 and No. 555 to help unload the trucks. He came from the south, parked his automobile about 15 feet west of highway No. 555 in the center of the right of way of new M-46, facing the southeast. The Chevrolet truck arrived first, was backed off the highway and stopped about 30 feet east of the east shoulder of highway No. 555, on the south line of the right of way of new M-46 which runs substantially east and west, preparatory to unloading. This truck stood facing the northwest. While it was unloading, the Dodge truck stopped at the south line of the right of way of new M-46. The lights on all vehicles were turned on. The Dodge truck was so located that both sides were illuminated by the automobile on either side. The driver of the Dodge truck went to help unload the Chevrolet truck and about three minutes afterward plaintiff, riding with her husband in his automobile coming from the north, drove across the intersection of highway No. 555 with new M-46 at about 25 miles an hour, missed the dump body of the Dodge truck, crashed into the mats on it with such force as to slide the mats on the left side of the truck one and one-half feet toward the rear end of the dump body. The windshield and top of the body of the automobile in which plaintiff was riding were sheared off and came to rest in the center of the road about 50 feet south of the Dodge truck. The body of plaintiff's husband was found in the middle of the road about 100 feet south of the Dodge truck. His automobile, after the impact, went up a five-foot grade and over a two-foot embankment and landed against a large stone in the fence 219 feet south of the Dodge truck. Plaintiff's husband was killed and plaintiff seriously injured. Plaintiff brought suit to recover for the injuries she suffered.

The lower part of the mats and the end of the red flag were more than 42 inches above the pavement. Plaintiff testified she was blinded by the lights from the truck, but there was no testimony as to what plaintiff's husband saw or did not see. Plaintiff and her husband were engaged in conversation in relation to some wood he had purchased from her stepfather until the moment of impact. Defendants, at the close of plaintiff's case, moved for a directed verdict upon the ground plaintiff's husband, driver of the automobile in which she was riding at the time of injury, was guilty of contributory negligence. The court reserved decision under the statute and submitted the case to the jury which found for plaintiff. A motion for judgment notwithstanding the verdict was made by defendants and denied by the court, judgment entered, and defendants appeal.

Plaintiff relies on Act No. 253, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 4759), to establish defendants' negligence. The act provides with certain exceptions not here material that "No motor vehicle * * * hereafter operated upon the public highways of this State shall have a gauge * * * more than ninety-six inches wide, over all including load." It is conceded the mats were 14 and 16 feet long and the load was wider than permitted by statute.

"The statute does not declare a rule of reasonable care in loading. It prescribes a mandatory condition of the use of the highway. It is incumbent on the driver, at his peril, to comply with the statute at all times." Beckman v. Baraga TownshipSchool District, 271 Mich. 195.

Defendants' negligence is established.

"No person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead." 1 Comp. Laws 1929, § 4697, as amended by Act No. 119, Pub. Acts 1933 (Comp. Laws Supp. 1935, § 4697).

The negligence, if any, of the driver of the automobile in which plaintiff was riding is imputed to her. Holsaple v.Superintendents of Poor of Menominee County, 232 Mich. 603. Any want of due care or any failure as to a specific duty imposed by statute on the part of the plaintiff, if any, however slight, which contributed to the accident would bar recovery.Gleason v. Lowe, 232 Mich. 300.

"If there is negligence and contributory negligence then there is no remedy." Bielecki v. United Trucking Service,247 Mich. 661.

In Ruth v. Vroom, 245 Mich. 88 (62 A.L.R. 1528), the court in passing upon the "assured clear distance" rule, said:

"The rule adopted by this court does not raise merely a rebuttable presumption of negligence. It is a rule of safety. * * * It is not enough that a driver be able to begin to stop within the range of his vision, or that he use diligence to stop after discerning an object. The rule makes no allowance for delay in action. He must, on peril of legal negligence, so drive that he can and will discover an object, perform the manual acts necessary to stop, and bring the car to a complete halt within such range."

See, also, Cook v. City of Otsego, 282 Mich. 248, and cases cited.

It is negligence as a matter of law to drive an automobile along a public highway in the dark at such speed that it cannot be stopped within the distance that objects can be seen ahead of it. Spencer v. Taylor, 219 Mich. 110; Gleason v. Lowe,supra; Diederichs v. Duke, 234 Mich. 136; Lett v. Summerfield Hecht, 239 Mich. 699.

"We do not think the rule should be weakened by engrafting exceptions on it or modifying it. Its observance bespeaks the safety of human life and limb and of property. Had it been observed on the night in question, this unfortunate accident would not have happened." Lett v. Summerfield Hecht, supra.

If the vision of the driver of the automobile in which plaintiff was riding was obscured by lights from oncoming cars, or if the lights on his own automobile did not illuminate the range of his vision so that he was deceived by appearances, then he was guilty of contributory negligence imputable to plaintiff. If the driver of the automobile in which plaintiff was riding saw the projecting mats and did not bring his automobile to a stop but ran into them, that would be contributory negligence as a matter of law.

Plaintiff contends the lower court properly denied defendants' motion, and cites Minks v. Stenberg, 217 Iowa, 119 (250 N.W. 883); Whitworth v. Riley, 132 Okla. 72 (269 Pac. 350, 59 A.L.R. 584); Waynick v. Walrond, 155 Va. 400 (154 S.E. 522, 70 A.L.R. 1014); Crooks v. Rust, 119 Wn. 154 (205 Pac. 419); Dorris v. Bridgman Co., 296 Pa. 198 (145 A. 827). In none of these cases was an "assured clear distance" statute involved. Caudle v. Zenor, 217 Iowa, 77 (251 N.W. 69), involved an "assured clear distance" statute, but exceptions have been engrafted on it.

Act No. 59, § 46 (b), Pub. Acts 1931 (Comp. Laws Supp. 1935, § 4738 [b]), is substantially the same as 1 Comp. Laws 1929, § 4738 (b), which is the same as Act No. 318, § 46 (b), Pub. Acts 1927. This provision in relation to lights on motor vehicles first appeared in Act No. 22, Pub. Acts 1921 (1st Ex. Sess.), and was probably repealed by Act No. 3, Pub. Acts 1921 (2d Ex. Sess.). Act No. 59, § 46 (b), Pub. Acts 1931 (Comp. Laws Supp. 1935, § 4738 [b]), provides:

"Head lamps and auxiliary driving lamps shall be so aimed and used upon approaching an oncoming vehicle that they do not project a glaring or dazzling light into the eyes of the approaching driver. Such lamps shall be deemed to comply with this provision prohibiting glaring and dazzling lights if substantially none of the main bright portion of the beam used in approaching an oncoming car is directed to the left of the vertical plane through the axis of the left head lamp and parallel to the longitudinal axis of the vehicle and above the horizontal plane passing through the lamp centers parallel to the level road upon which the loaded vehicle stands, and in no case higher than forty-two inches, seventy-five feet ahead of the vehicle."

The 1927 act above referred to provides:

"Head lamps shall be deemed to comply with the foregoing provisions prohibiting glaring and dazzling lights if none of the main bright portion of the head lamp beams rises above a horizontal plane passing through the lamp centers parallel to the level road upon which the loaded vehicle stands and in no case higher than forty-two inches, seventy-five feet ahead of the vehicle."

Plaintiff argues that though her husband was negligent in violating the "assured clear distance" rule, this was not the proximate cause of the accident, because these mats were more than 42 inches above the level of the roadbed upon which the trucks were standing and because by statute the rays of light from the automobile of plaintiff's husband were not permitted to be more than 42 inches above the ground, 75 feet in front thereof. The statute provides "if substantially none of the main bright portion of the beam used in approaching an oncoming car" rises higher than 42 inches, at 75 feet in front of the automobile. The statute does not say no beam is to be above 42 inches, but that substantially none of the main bright portion should be. 1 Comp. Laws 1929, § 4738 (a), as amended by Act No. 59, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 4738), requires that automobile lights be so adjusted that when approaching an oncoming vehicle they will be sufficient to render clearly discernible a person 75 feet ahead. Both provisions of the statute should be permitted to stand and be construed together. Section 4738 (b), as amended by Act No. 59, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 4738), does not mean that only three and one-half feet of a person need be clearly discernible while subsection (a) says the whole person shall be discernible. While one portion of the statute provides that substantially none of the main bright portion of the beam is to be above 42 inches, yet some of the rays of light from the automobile must necessarily be above 42 inches if subsection (a) of the statute is to mean anything. Had plaintiff's husband been watching and had he not been blinded by the glare of defendants' headlights, he would have been able to have seen the mats if the lights on his own automobile were in proper condition. We do not agree with the construction placed upon this statute by the trial court.

In Sellon v. Tanner, 252 Mich. 231, an automobile in which plaintiff was riding as a guest of the driver was proceeding north on the east side of the pavement on south Cedar street, in the city of Lansing, about 5:30 p. m., December 27, 1928, and at the intersection of Greenlawn street collided with a truck which had backed from Greenlawn street into the path of the northbound traffic on Cedar street and plaintiff was injured and brought suit against the owner. We held defendant was entitled to a directed verdict on the ground of contributory negligence on the part of plaintiff's driver. It was said:

"Defendant's truck backed into the intersection with the body of the truck and an overhanging timber reaching quite to the center of the pavement and directly across the path of the automobile in which plaintiff was riding. * * * Plaintiff did not see the truck because he was looking at approaching traffic on the opposite side of the pavement."

Defendant was negligent in backing his truck as shown in that case. It was said:

"It is negligence, as a matter of law, for the driver of a car to proceed over a highway without looking to see whether he can do so in safety. Lights on cars are intended to disclose the way ahead after dark, and, if they fail to do so for any reason, it is a warning to the driver not to proceed without having vision of the way."

The record in that case shows there were lights on the back of the cab of the truck seven and one-half feet above the ground, the platform upon which the timbers were riding was about three and one-half feet from the top of the cab, which would bring them at least 42 inches from the ground. As in this case, the automobile was demolished above the cowl and undamaged below by the impact of the collision. When this case was decided, Act No. 318, § 46 (b), Pub. Acts 1927, was in effect.

The rule in Sellon v. Tanner, supra, was approved in Fraley v. J. Calvert's Sons, 266 Mich. 460, and Johnson v. FremontCanning Co., 270 Mich. 524.

The trial court should have entered judgment for defendants.

Judgment should be reversed and cause remanded for entry of judgment notwithstanding the verdict, with costs to defendants.

WIEST, C.J., and BUTZEL, J., concurred with POTTER, J. FEAD, J., took no part in this decision.