Ann Arbor Const. Co. v. Russ

• Decision Date: 08 October 1945
• Docket Number: No. 63.,63.
• Citation: 312 Mich. 527,20 N.W.2d 298
• Parties: ANN ARBOR CONST. CO. v. RUSS.
• Court: Michigan Supreme Court

312 Mich. 527

20 N.W.2d 298

ANN ARBOR CONST. CO.

v.RUSS.

No. 63.

Supreme Court of Michigan.

Oct. 8, 1945.

Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Action by the Ann Arbor Construction Company, a Michigan corporation, against H. Russ for damages to a truck, wherein defendant filed a cross-declaration and the case was heard without a jury. From a judgment for plaintiff, defendant appeals.

Judgment reversed.

Before the Entire Bench.

Burke, Burke & Smith and Franklin C. Forsythe, all of Ann Arbor, for plaintiff-appellee.

Roscoe O. Bonisteel, of Ann Arbor, and J. Don Lawrence, of Ypsilanti, for defendant-appellant.

BUTZEL, Justice.

At about noon on a clear day in June, 1943, the driver of plaintiff's truck was proceeding in a southerly direction down Wiard Road, east of the City of Ypsilanti, Michigan, toward the southerly portion of the Ecorse Road. The Wiard Road running north and south is an inferior road, but of sufficient width to accommodate two passing cars. There was a gate across Wiard Road where it entered the Ecorse Road but it was opened and fastened back. It was possible to close off the road. The Ecorse Road is a boulevard and paved double highway with a very wide plot in the center dividing the two portions of the road. The northerly portion is used exclusively for westerly bound traffic and the southerly portion for traffic going east. Near the Wiard Road, as it continues beyond the south line of the southerly portion of the Ecorse Road, there is a cut-off, consisting of a three-lane highway, that also leads at an angle in a southerly but different direction. The southerly portion of the Ecorse Road is a four-lane highway 40 feet in width. The two portions of the Ecorse Road are master highways running east and west and accommodate heavy traffic going between Detroit and Ypsilanti. The Wiard Road does not run at a right angle with and across the southern portion of the Ecorse Road but at a wider angle so there is a distance of 60 feet between the northerly and southerly lines abutting on the Ecorse Road, although the southerly portion of the Ecorse Road is only 40 feet wide. In referring to the Ecorse Road, we shall refer exclusively to the southerly portion or avenue that accommodates the traffic going east. For convenience, we refer to the four lanes of this southerly portion as lane 1, the most southerly 10 feet of the road, lane 2 consisting of the next 10 feet adjoining, and lanes 3 and 4 the next 10 feet respectively.

Plaintiff's driver was driving a General Motors Truck built in the late twenties. It had been overhauled, repaired and was in good condition. It had a transit mixer mounted on it and was used to carry paving material. The truck with equipment weighed approximately eight tons without the mixture it was carrying. There is an incline with a fairly steep grade on Wiard Road where it reaches the southerly portion of the Ecorse Road. Plaintiff's driver claims that he came to a full stop from 6 to 12 feet before he drove up the incline. Just as he started he looked down the Ecorse Road and saw defendant's Ford truck, which was also heavily loaded with gravel. It was coming from the west and had reached a viaduct between 900 to 1000 feet to the west from the Wiard Road. Plaintiff's driver testified that he thought he had time to drive his truck across the road before defendant's truck would reach the intersection, and he placed the truak in ‘creeper’ gear as he started to cross. It took him three or four seconds to get the car started. His car was on the incline, the front about three feet higher than the rear. However, plaintiff's driver did not see defendant's truck approaching until he started his truck up the incline. When after a few seconds he finally started, he was going less than four miles an hour, for in order to get up a speed of four miles an hour on a motor of that age, he would have to have the motor warmed up, in gear, and going as fast as it could go. He claimed he had the accelerator of the truck right down to the floor board. Although he saw defendant's truck approaching at all times, he did not stop even though he could have stopped within a distance of 10 feet. In the meantime, defendant's driver was rapidly approaching without slackening his speed.

The case was heard without a jury. The trial judge stated at the end of the disputed testimony that plaintiff's truck was going between four and five miles an hour and that would make the speed of defendant's truck between 48 and 60 miles an hour. The testimony does not bear out this statement for according to the admission of plaintiff's driver, he was going less than four or five miles an hour, its miximum speed, until he got his truck going at this speed. In figuring that defendant's truck must have been going from 48 to 60 miles an hour, the judge also arrived at this conclusion from the fact that when the two trucks collided, defendant's truck, on striking that of plaintiff just behind the cab, shoved it 50 feet sideways along the road. Defendant's driver claimed that he was only going 35 miles an hour and that he did not see plaintiff's truck until he was within 15 or 20 feet from it, and that it was crossing the highway at a very rapid speed. Plaintiff's driver admitted that he did not blow the horn of the truck when he started or proceeded at a slant across the road so as to warn defendant's driver. The only witnesses to the accident were the respective drivers. There were no obstructions or traffic that...