Ballinger v. Smith

Decision Date05 June 1950
Docket NumberNo. 10,10
PartiesBALLINGER v. SMITH et al.
CourtMichigan Supreme Court

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.

CARR, Justice.

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

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 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 proofs the evidence must be construed in a light favorable to the party litigant against whom the motion is directed. The opening statement of counsel must be construed in like manner. However, under the stipulation of the parties and the order of the trial court thereupon, the sufficiency of the averments of the declaration is also in issue.

The record discloses that the ruling of the trial judge was based primarily on his conclusion that the statute, above cited, requiring lights on parked vehicles in certain instances, did not apply to defendants' trailer in view of its admitted position. Said section, by reference to section 44, related to displaying of lights on vehicles parked on a highway during the period from one half hour after sunset to one half hour before sunrise, and at other times when there was not sufficient light to render clearly discernible any person on the highway at a distance of 500 feet. It read as follows: 'Whenever a vehicle is parked or stopped upon a highway whether attended or unattended during the times mentioned in section 44 there shall be displayed upon the left side of such vehicle 1 or more lamps projecting a white light visible under normal atmospheric conditions from a distance of 200 feet to the front of such vehicle and projecting a red light visible under like conditions from a distance of 200 feet to the rear, except that local authorities may provide by ordinance that no lights need be displayed upon any such vehicle when parked in accordance with local ordinances upon a highway where there is sufficient light to reveal any person within a distance of 200 feet upon such highway.'

It is plaintiff's claim that defendants' trailer was parked on the 'highway' within the meaning of the term as used in the quoted section. Defendants insist that such was not the fact and that the statute should not be construed as imposing the duty to display lights during the hours of darkness on a motor vehicle off the main-traveled or wrought portion of the road. It thus appears that the primary question at issue is one of statutory construction. C.L.1948, § 256.301, Stat.Ann.1947 Cum.Supp. § 9.1561, read, in part:

'Sec. 1. Definitions. The following words and phrases when used in this act shall for the purpose of this act have the meanings respectively ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:

* * *

* * *

'(n) 'Street or highway.' The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel'.

In construing the statute it is the duty of the court to ascertain and give effect to the legislative intent. The language used must be read in the light of the general purpose sought to be accomplished. In ...

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