Bowmaster v. William H. De Pree Co.

• Decision Date: 02 December 1930
• Docket Number: No. 55,Oct. Term.,55
• Citation: 233 N.W. 395,252 Mich. 505
• Parties: BOWMASTER v. WILLIAM H. DE PREE CO. et al.
• Court: Michigan Supreme Court

252 Mich. 505

233 N.W. 395

BOWMASTER

v.WILLIAM H. DE PREE CO. et al.

No. 55, Oct. Term.

Supreme Court of Michigan.

Dec. 2, 1930.

Case-Made from Circuit Court, Ottawa County; Wm. B. Brown, Judge.

Action by Benjamin H. Bowmaster, administrator of the estate of Arthur R. Bowmaster, deceased, against William H. De Pree Company and others. Judgment for defendants, and plaintiff seeks review by case-made.

Reversed and remanded.

Argued before the Entire Bench. Clare E. Hoffman, of Allegan, and Carl E. Hoffman, of Holland (Leo W. Hoffman, of Allegan, of counsel), for appellant.

Diekema, Kollen & Ten Cate, of Holland, for appellees William De Pree Co. and John H. De Pree.

POTTER, J.

Plaintiff, administrator of the estate of Arthur R. Bowmaster, deceased, brought suit against defendants to recover damages for injuries to plaintiff's decedent which resulted in his death. There was a directed verdict for defendants William H. De Pree Company and John H. De Pree, and a verdict by the jury in favor of defendant Van Ark. Plaintiff is here on case-made after judgment.

December 20, 1928, was cold and blustery. Snow was falling to some extent, and the high wind swirled it about so that sometimes clouds of snow temporarily obscured one's vision, and at other times one could see plainly. The paved highway at the place where plaintiff's decedent was injured was covered with ice and for a considerable distance either way from that point the pavement was covered with ice, and in others it was practically bare. The defendant John H. De Pree was driving a truck belonging to defendant William H. De Pree Company easterly on the trunk line highway between Zeeland and Hudsonville, when, near the point where plaintiff's decedent was subsequently injured, he discovered an automobile had slid off the pavement on the right-hand side of the road and was unable to get back on the traveled portion of the highway. The driver of the stalled automobile signaled defendant De Pree, and he drove on easterly, turned around at an intersection and came back and stopped his truck on the north side of the highway, sent his helper across the traveled portion of the road to the automobile, and then crossed the highway with his truck heading westerly, and stopped on the south part of the paved portion of the road with the lights of the truck turned on, got out a block and tackle, and was about to pull out the automobile which had slid off the highway.

Decedent and his sister were traveling easterly on the same highway with a truck, and, seeing the truck of defendant De Pree headed toward them on the wrong side of the highway, with the lights on, and perhaps seeing the automobile off the traveled portion of the highway, decedent stopped his truck in front of that of defendant De Pree. Plaintiff's decedent did not have lights upon his truck. The truck of the decedent was within about 15 feet of that of De Pree when he stopped. Plaintiff's decedent got out, spoke to De Pree, and De Pree then climbed in the cab of his truck and was about to pull out the stalled automobile, and plaintiff's decedent started back toward his truck. Defendant Van Ark was driving eastward, and his automobile struck decedent, or possibly decedent was struck by his own truck put in motion by being struck by defendant Van Ark's automobile. Defendant Van Ark says that, because of the swirling snow obscuring his vision somewhat, he slowed down to 15 miles an hour when he saw the road obstructed ahead of him, and that he swung to the left and applied his brakes, and, as he did so, his car swung around and hit the truck of the plaintiff's decedent, thus causing the injury. Defendant De Pree says Van Ark's automobile struck decedent's truck with sufficient force to knock it ahead 15 feet. De Pree did not see decedent's truck or what struck him. He was sitting in the cab of his truck at that time. He does say he saw plaintiff's decedent immediately after he was struck, while he was in the air, and before he struck the pavement, with his arms and legs outstretched, that he was hit with sufficient force to knock him off the ground, and he was thrown practically in front of the truck of De Pree possibly 12 or 15 feet.

Plaintiff's decedent was accompanied on this trip by his sister, who had been riding in the truck cab with him and who remained in the cab. From her testimony it is evident plaintiff's decedent was struck while on the roadway and thrown a considerable distance. At the conclusion of plaintiff's testimony, the trial court directed a verdict of no cause of action in favor of defendants De Pree, and submitted the case to the jury as to the negligence of the defendant Van Ark and the contributory negligence of plaintiff's decedent.

It is the duty of the driver of an automobile to observe vehicles on the road ahead of him.

‘He must keep his car under control, and operate it with care so that he will not run into vehicles ahead of him, which duty may require him to reduce his speed where his vision is in any way interfered with.’ 43 C. J. 949.

‘It is the duty of the operator of an automobile to keep his car under reasonable control, so that he may avoid collisions with, and injury to, other users of the highway who are themselves exercising reasonable care. Performance of this duty requires that the speed of the car shall at all times be reasonable and a rate of speed may properly be regarded as negligent if a person of ordinary prudence and intelligence ought, by the exercise of such intelligence to have foreseen that an injury might result from such rate of speed. The duty of control exists irrespective of any governmental regulations.’ 42 C. J. 921.

‘The driver is chargeable with knowledge of all that a prudent and vigilant operator would have seen, and is, accordingly, chargeable with negligence if he fails to discover a vehicle which or a traveler whom he would have discovered in time to avoid the injury if reasonable care in keeping a lookout had been exercised.’ 42 C. J. 911.

‘An automobile driver is required, in the exercise of reasonable care, to use a high degree of caution where existing conditions interfere with his vision ahead of his car.’ 42 C. J. 912.

‘The duty to keep an automobile under control involves the element of ability to stop promptly within a reasonable distance. This duty does not extend so far as to require that it must always be possible to bring the car to an immediate stop on the sudden arising of a dangerous situation which the driver could not reasonably have anticipated. Where, however, a situation of danger is present or may reasonably be expected to develop at any time, or the driver is, for any reason, unable to keep a lookout ahead, reasonable care may require that the automobile be so operated that it can avoid any danger by an immediate stop.’ 42 C. J. 929.

When the defendant Van Ark saw the truck of plaintiff's decedent standing on the right side of the traveled portion of the highway, it was his duty to pass a safe distance to the left. Section 4706, Comp. Laws 1929.

‘In any action, in any court in this State when it is shown, by competent evidence, that a vehicle traveling in a certain direction, overtook and struck the rear end of another vehicle proceeding in the same direction, or lawfully standing upon any highway within this State, the driver or operator of such first mentioned vehicle shall be deemed prima facie guilty of negligence. This act shall apply, in appropriate cases, to the owner of such first mentioned vehicle and to the employer of its driver or operator.’ Section 4788, Comp. Laws...