Buwalda v. Ottawa Cnty.

• Decision Date: 05 March 1935
• Docket Number: No. 121.,121.
• Citation: Buwalda v. Ottawa Cnty., 270 Mich. 477, 259 N.W. 315 (Mich. 1935)
• Parties: BUWALDA v. OTTAWA COUNTY et al.
• Court: Michigan Supreme Court

270 Mich. 477

259 N.W. 315

BUWALDA

v.OTTAWA COUNTY et al.

No. 121.

Supreme Court of Michigan.

March 5, 1935.

Action by Cecilia Buwalda, administratrix of the estate of Peter Buwalda, deceased, against Ottawa County and another. Judgment of no cause of action, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Ottawa County; Fred T. Miles, judge.

Argued before the Entire Bench.

Sigmund S. Zamierowski, of Grand Rapids, for appellant.

John R. Dethmers, of Holland, and Louis H. Osterhous, of Grand Haven, for appellees.

EDWARD M. SHARPE, Justice.

This is an action under the survival act for injuries received by plaintiff's decedent in an automobile accident on a county highway in Ottawa county, and from the record we find that plaintiff's decedent left Grand Rapids at 7 p. m., accompanied by one Archie Lish. They drove to Marne and then turned south. This road is not a through highway, but is a county road running through a farming community. It runs south from Marne a distance of one mile and then ends at an east and west road. Both of these roads are good, smooth, and of a gravel construction. They were in good condition as to roadbed and surface at the time of the accident. The north and south road is approximately 15 feet wide, with ditches on each side of it, and the east and west road is 15 or 16 feet wide.

At the turn west, at the intersection, the east and west road crosses a bridge, which is 22 feet west of the west line of the north and south road, if extended. The bridge is 15 feet wide and has sloping cement wings extending fanwise at all four corners. On the east side of the north and south road is an open field, and to the west of this road the condition is similar with the exception of a few trees and a line of telephone poles.

On the south side of the east and west road and opposite the end of the north and south road is a row of trees and a fence extending south and an open field east of the trees. The fence and trees are from 3 to 5 feet west of the middle line of the north and south road if extended, and the first tree south of the east and west road is about 18 feet from its southern edge. The record also shows that a pole stands about 6 feet from the south edge of the east and west road. This pole is about 3 feet west of the fence and row of trees. On this pole there is attached a glass reflector designed to show red when a light is thrown upon it. The reflector is 6 or 7 inches in size, and is so placed on the pole that the lights of a car traveling south on the north and south road will show a refiection; however, on the date of the accident part of the glass in the reflector was broken.

The only living eyewitness to the accident is the witness Archie Lish, who testified that the accident occurred about 8 o'clock in the evening of December 1, 1932; that the night was dark and somewhat cloudy; that the road was smooth with a slight sprinkling of snow, but no snow where the roads intersected; that plaintiff's decedent was traveling along at the rate of 18 to 20 miles per hour; and that suddenly and without warning they came to the end of the road, and in making a turn to the right, after applying the brakes was unable to keep his car on the road, and it ran upon the southeasterly cement arm of the bridge, toppled into the ditch, injuring plaintiff's decedent, as a result of which he died December 2, 1932.

The cause was tried before a jury, and at the conclusion of all testimony defendant made a motion for a directed verdict on the theory that plaintiff's decedent was guilty of contributory negligence, and that such negligence was the proximate cause of the accident.

The trial judge reserved his decision, and, upon the failure of the jury to agree upon a verdict, they were discharged. Defendant then filed a motion for a judgment of no cause of action on the grounds contained in its motionfor a directed verdict. This motion was granted.

Plaintiff contends that it was the duty of the county to post timely warning signals at the intersection of the two...