Bard v. Baker

• Decision Date: 25 February 1938
• Docket Number: No. 111,Oct. term, 1937.,111
• Citation: 278 N.W. 88,283 Mich. 337
• Parties: BARD v. BAKER et al.
• Court: Michigan Supreme Court

283 Mich. 337

278 N.W. 88

BARD

v.BAKER et al.

No. 111, Oct. term, 1937.

Supreme Court of Michigan.

Feb. 25, 1938.

Suit by Jennie Bard against John Baker and Amos Baker, copartners as Baker & Son, for injuries sustained when automobile in which plaintiff was riding collided with mats loaded on a truck. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

POTTER, J., WIEST, C. J., and BUTZEL, J., dissenting.

Appeal from Circuit Court, Gratiot County; Kelly S. Searl, judge.

Argued before the Entire Bench.

Charles H. Goggin and Robert H. Baker, both of Alma, for appellants.

Montigel & Knorr, of Alma (J. David Sullivan, of Alma, of counsel), for appellee.

SHARPE, Justice.

At about the hour of 6 p. m., on the evening of December 10, 1935, Byron Bard and wife, the plaintiff herein, were traveling south in a 1926 two-door Buick sedan on the westerly side of a graveled highway known as 555. On the same day John Baker, one of the defendants, took two truck drivers and a Dodge truck and went to Remus where they got another truck and brought back in the trucks two loads of six road mats for use on a highway construction job. The mats are made of 2-inch elm planks, 3-ply, put together crosswise to make them firm enough to hold heavy machinery that may have occasion to pass over them. The mats when constructed are 6 inches thick, 4 feet wide, and 14 to 16 feet long. The trucks were 1 1/2-ton chassis, equipped with dump bodies, 6 feet wide and 8 feet long; the top of the dump box was 5 feet from the ground. Two 14 and one 16-foot mat were loaded on top of each other crosswise of the dump bodies and just back of the cab of each truck. The trucks were loaded heavier on the right side, and a red flag, 1 1/2 feet square, was fastened at the left front end of the lower mat on each truck. The lowest part of the mat and end of the flag were more than 42 inches from the pavement. The truck arrived at the place where the accident happened shortly before 6 p. m. Mr. Baker drove on ahead to the intersection. He parked his car about 15 feet west of 555 and in the center of M-46 facing the southeast. The Chevrolet truck next arrived and was backed off of highway 555 and stopped about 30 feet east of the east shoulder of 555 and on the south line of the right of way of M-46. It stood facing nearly west. The Dodge truck next arrived and stopped at the south line of the right of way of M-46, the right wheels being about 8 inches from the east shoulder of 555. The lights on all of these vehicles were turned on. The Dodge truck was so located that the lights of the car and truck illuminated both sides of the truck. The Bards had been visiting at the home of plaintiff's relatives who lived about one mile north of the intersection. They left there as it was growing dark, turned on their lights, and eventually proceeded south on 555. They were traveling about 25 miles per hour, and slowed up somewhat as they approached the intersection. They crossed the intersection, missed the dump body of the truck, and crashed into the mats which extended about 1 1/2 feet into the westerly half of 555. The force of the impact slid the mats on the left side of the truck 1 1/2 feet toward the rear end of the dump body. The windshield and the entire top and body of the Bard car above the steering wheel was sheared off. Bard's body was found in the middle of the road about 100 feet south of the Dodge truck, and the automobile came to a stop against a large stone 219 feet south of the truck. Mr. Bard was killed, and plaintiff received serious scalp wounds and other injuries.

Plaintiff brought suit for injuries, and at the close of her case the defense moved the court to direct a verdict on the ground that the driver of the automobile, in which plaintiff was riding when she was injured, was guilty of contributory negligence. Decision on this motion was reserved under the statute and the cause submitted to the jury, who thereupon found in favor of plaintiff. Defense then made a motion for judgment non obstante veredicto, and, upon the denial of this motion, defendants appealed.

It is conceded by all parties that plaintiff is not a minor and that the negligence of her husband, the driver of the car, is imputed to her; that 1 Comp.Laws 1929, § 4759, as amended by Act No. 253, Pub.Acts 1933, provides that the width of the load over all, with certain exceptions not applicable to this case, shall not exceed 96 inches; and that as a result of the defendants' failure to comply with the terms of this statute, they were guilty of negligence in violating this statute. See Beckman v. Baraga Tp. School Dist., 271 Mich. 195, 260 N.W. 152.

Defendants rely upon 1 Comp.Laws 1929, § 4697, as amended by Pub.Acts 1933, No. 119, which provides that ‘no person shall driver 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,’ and cite the following cases to the effect that if a driver is blinded by glaring lights he must stop: Ott v. Wilson, 216 Mich. 499, 185 N.W. 840;Spencer v. Taylor, 219 Mich. 110, 188 N.W. 461;Holsaple v. Sup'ts. of Poor, 232 Mich. 603, 206 N.W. 529;Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A.L.R. 1528;Bielecki v. United Trucking Service, 247 Mich. 661, 226 N.W. 675;Elrich v. Schwaderer, 251 Mich. 33, 230 N.W. 902;Thompson v. Southern Mich. Transp. Co., 261 Mich. 440, 246 N.W. 174;Russell v. Szczawinski, 268 Mich. 112,225 N.W. 731.

We have frequently had the adove-mentioned statute under consideration. In Martin v. J. A. Mercier Co., 255 Mich. 587, 238 N.W. 181, 182, 78 A.L.R. 520, a motorist while it was misty and dark had been driving along a road open to traffic and drove into an excavation not marked with warning lights. We there said:

‘The only danger against which he was bound to guard was what he saw or should have been.

‘The rule that a driver must see objects and be able to stop within the range of his lights, applied to things on the road, does not apply to holes in the road. A hole often melts into the road so it cannot be distinguished from the surface except at short range. Whether and when a hole or excavation would be noticed by a careful driver, especially on a misty and dark morning, necessarily is so uncertain and dependent upon circumstances that, with possible exceptions, it is an issue of fact.’

In Marek v. City of Alpena, 258 Mich. 637, 242 N.W. 793, 794, a motorist ran into a bump in the highway, we there said: ‘A violation of the rule that a driver must drive his car at such a speed that he can stop within the assured clear distance ahead does not preclude his recovery for injuries in a case where they are caused by running into a hole or bump on the road. The assured clear distance rule is applied when there is collision with trucks or other objects not a part of the road.’

In Garrison v. City of Detroit, 270 Mich. 237, 258 N.W. 259, a motorist, while driving on First street in the city of Detroit at a speed of 20 miles per hour or less, struck an unlighted traffic signal post. The signal device consisted of a cement base, 3 feet in diameter and 3 feet high, supporting a 6-inch steel post bearing guard lights 5 feet above the pavement and traffic lights 9 feet high. In discussing the ‘rule of safety’ as found in Russell v. Szczawinski, 268 Mich. 112, 255 N.W. 731 and Thompson v. Southern Michigan Transportation Co., 261 Mich. 440, 246 N.W. 174, we said:

‘The cases dealt with large objects, such as other motor vehicles, easily seen, and on the open road. A driver must anticipate such objects, lighted or unlighted, carefully or negligently driven or parked, and guard against collision with them. He must see such obstruction as a careful person would have seen.

‘It would convert a rule of safety into a rule of danger to hold that drivers in a city, subject to distraction caused by pedestrians and vehicles, must anticipate, at their peril, so unusual a thing as an unlighted traffic signal in the center of a street intersection. When such a device is maintained, the cited rule of safety is not applicable, but the question of the driver's negligence becomes an issue of fact under the circumstances.’

Plaintiff has cited the following cases from other jurisdictions: Whitworth v. Riley, 132 Okl. 72, 269 P. 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 Wash. 154, 205 P. 419;Dorris v. Bridgman & Co., 289 Pa. 533, 137 A. 609. And we have examined Ross v. Hoffman, Mo.App. (269 S.W. 679);Mechler v. McMahon, 184 Minn. 476, 239 N.W. 605;Whitlatch v. City of Iowa Falls, 199 Iowa 73, 201 N.W. 83;Wicker v. North States Construction Co., 183 Minn. 79, 235 N.W. 630;Kadlec v. Al. Johnson Constr. Co., 217 Iowa 299, 252 N.W. 103;Baldwin v. City of Norwalk, 96 Conn. 1, 112 A. 660.

In the cases cited from other jurisdictions the ‘rule of safety’ is not statutory as in Michigan, and these cases are not authority for the claims made by plaintiff; they merely show the tendency of courts of other jurisdictions to adopt a more liberal rule than is followed in Michigan. Our court, in placing a reasonable construction upon this statute, has held that a person should not be guilty of contributory negligence as a matter of law in failing to see an object which was undiscernible to a person approaching the same in the exercise of ordinary care.

In the case at bar, plaintiff's driver was killed and we do not know what he saw as he approached the truck. The record shows that he was traveling at the rate of 25 miles per hour and began to slow down as he crossed the intersection; that the lowest part of the mats and flag were more than 42 inches above the pavement, which is the height the ‘main bright portion of the head lamp beams' of Bard's car were permitted by law to shine. 1 Comp.Laws 1929, § 4738(b), as amended by Act No. 59, Pub.Acts 1931. In our opinion, plaintiff's driver should have seen defendants'...