Ballinger v. Smith, 10

• Court: Supreme Court of Michigan
• Writing for the Court: CARR; BOYLES
• Citation: 43 N.W.2d 49,328 Mich. 23
• Parties: BALLINGER v. SMITH et al.
• Docket Number: No. 10,10
• Decision Date: 05 June 1950

Page 49

43 N.W.2d 49 328 Mich. 23 BALLINGER
v.
SMITH et al. No. 10. Supreme Court of Michigan. June 5, 1950.

[328 Mich. 25]

Page 50

Russell V. Carlton, Kalamazoo, Edward J. Ryan, Kalamazoo, for appellant Hazel Ballignger.

Goembel, White & Locke, Kalamazoo, for appellee Carl Behnke, individually and doing business as Lafler Moving Co.

N. A. Cobb, Battle Creek, for appellee Newell Smith.

Before the Entire Bench.

[328 Mich. 26] CARR, Justice.

Plaintiff brought this suit to recover damages for injuries claimed to have been sustained

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by her in a traffic accident which occurred on U. S. trunk line highway No. 12 in Calhoun county, shortly before 2 o'clock in the morning of July 18, 1948. On the trial of the cause, following the selection of a jury and the opening statement of plaintiff's attorney, defendants moved for a directed verdict. The parties have entered into a stipulation, which appears in the record, reciting that such motion was based 'on the pleadings of record and on file and upon the plaintiff's opening statement.' An order was entered in accordance with the stipulation. The trial judge came to the conclusion that the motion was well founded, and directed a verdict accordingly. From the judgment entered for defendants pursuant to such verdict, plaintiff has appealed.

The declaration filed by plaintiff in the cause alleged that at the time in question she was riding in an automobile driven by her husband in a westerly direction on the highway; that said highway was paved; that on the north side thereof near the intersection of the trunk line and another highway was located a restaurant designated as the 'Period'; that the trunk line curved to the south as it approached the intersecting road from the west; and that the restaurant in question was approximately 50 yards north of the north side of U. S. 12. Plaintiff further alleged that between the restaurant and the north side of the highway was located a large parking space covered with cinders or other materials, well packed, extending to the edge of the paved portion of the highway. Prior to the accident defendant Smith, driving a tractor and trailer owned by the other defendant in a westerly direction on the trunk line, stopped near the restaurant, leaving the trailer off the concrete and approximately parallel to the pavement. The declaration further set forth that [328 Mich. 27] because of vehicles running off the concrete portion of the highway there was such quantity of dust in the air as to obscure vision to some extent. Plaintiff's husband operated his car off the pavement, ran into the trailer, and plaintiff received the injuries for which she seeks to recover damages.

It was the claim of the plaintiff as set forth in her pleading that defendant Smith was guilty of negligence in leaving his trailer at the time and place mentioned without displaying a lamp or lamps on the left side of the vehicle projecting a white light for a distance of 200 feet to the front thereof, and a red light for a like distance to the rear. It thus appears from the declaration that plaintiff's claim as to the negligence of defendant Smith was predicated chiefly on an alleged violation of C.L. 1948, § 256.348, Stat.Ann. § 9.1608, hereinafter quoted, in effect at the time of the accident. The provisions of the Michigan vehicle code, P.A.1949, No. 300, now in force, are not involved in the instant case. The pleading also averred that the trailer was parked upon the highway so close to the concrete portion thereof as to constitute a danger to traffic.

Defendants by answer denied negligence on the part of Smith, claiming that the trailer was left off the 'wrought portion' of the highway, north of the concrete and the shoulder of the road, and within 'well lighted premises' of the restaurant. The answer admitted that there were no lights on the trailer, denying, however, any violation of the statute, or that the omission to have lights on the trailer was a proximate cause of the accident, and asserting that such cause was the negligence of plaintiff and her husband.

The record indicates that a motion to dismiss the case was made by defendants on the ground that the declaration did not allege negligence on the part of defendant Smith. Thereafter, by stipulation of the [328 Mich. 28] parties, the declaration was amended in such manner as to charge that defendants had violated a regulation of the Michigan public service commission that any motor vehicle engaged in the transportation of passengers or property on the public highways of this State and stopping upon the paved or traveled portion of any highway between sundown and sunrise, other than when required to do so by law, shall immediately display lights in the manner and of the character set forth in the regulation.

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Plaintiff's attorney in his opening statement to the jury said in substance that proofs would be introduced to support the averments of fact, above referred to, set forth in the declaration. In referring to the place where the accident happened and the condition there existing, he said in part:

'We will show you that the highway at this point consists of one hundred foot right of way, in the middle of which there is a twenty foot pavement which is divided into two ten foot lanes; that outside of the pavement on either side there is a twelve foot shoulder which is gravel, improved, and up level with the edge of the pavement so that if you go off the edge of the pavement you run on a smooth surface,--you don't drop down.

'We will show you that at the time of this accident it was in that condition. We will show you that as you proceed west toward this Period Restaurant, that as the road starts to turn to the south, the shoulder is enlarged. The line of the gravel-improved portion north of the pavement broadens out and goes up north to the gas pumps and the lunch room and so on. That this whole apron is improved with gravel and cinders and comes up level with the pavement and there is no drop-off as you leave the pavement.

'We will show you that on this particular evening there was traffic both ways on the road and that from time to time the drivers of vehicles passing around, along, this curve would go off on to the shoulder and [328 Mich. 29] back on to the highway and that there was dust in the air at that place occasioned by this going out on the shoulder by automobiles.'

Counsel further stated that as the driver of plaintiff's car approached the Period Restaurant he saw a truck parked off the pavement with flares indicating its position, and that he also saw coming from the opposite direction the headlights of two automobiles, one of which was apparently attempting to pass the other. The claim was made that the Ballinger car was driven off the pavement and upon the shoulder of the road as a matter of precaution, and that the driver did not see the trailer, which was approximately eight feet from the edge of the pavement, prior to the impact.

This court has recognized that a motion for a directed verdict may be based on the opening statement of counsel. In re Bailey's Estate, 213 Mich. 344, 181 N.W. 969. In determining a motion for a directed verdict based on the...