Cole v. Barber, 13

• Decision Date: 09 September 1958
• Docket Number: A,No. 13,13
• Parties: Billie COLE, Plaintiff and Appellant, v. Lorenzo BARBER and G. L. Allen Company, a Michigan corporation, Defendants and Appellees. pril Term.
• Court: Michigan Supreme Court

Page 848

91 N.W.2d 848

353 Mich. 427

Billie COLE, Plaintiff and Appellant, v. Lorenzo BARBER and G. L. Allen Company, a Michigan

corporation, Defendants and Appellees.

No. 13, April Term.

Supreme Court of Michigan.

Sept. 9, 1958.

Ward, Plunkett & Cooney, Detroit, for appellant.

George H. Gotshall, Detroit, John R. Secrest, Detroit, of counsel, for appellees.

Before the Entire Bench.

VOELKER, Justice.

On August 24, 1953, at about 3:00 A.M. the plaintiff, Billie Cole, was operating a tractor, a flat bed trailer and a four-wheeler (pup) at a speed of approximately 40 miles an hour south on US-24, approaching the city limits of Monroe. This is a three lane paved highway. The night was clear but dark and there were no highway or city lights. The highway was straight, and there was no approaching traffic. Plaintiff's truck was lighted and in good working order. Plaintiff was in the center lane, passing a loaded freight van that was traveling in the same direction at a lesser speed in the west lane. When plaintiff had completed or had almost completed the pass he saw a large black unlighted object moving across the highway in front of him, whereupon he pulled the steering wheel hard to the right and dove to the floor to save his life.

Defendant, Lorenzo Barber, on the business of G. L. Allen Company was driving a tractor, oil trailer and a four-wheeler (pup), both tankers loaded with reclaimed oil. Defendant was in the process of pulling his rig across the highway from a dark parking area on the east side of the highway to the western lane so that he might likewise proceed in a southerly direction. Plaintiff's rig collided with defendant's at some point near the center of the highway, as a result of which plaintiff suffered multiple permanent injuries.

At ths point the facts become less clear. The evidence is in dispute as to precisely where the accident happened, where the debris from the accident was located, whether defendant had lights on his truck or not, and the position of defendant's rig on the highway at the time of the accident. There were no other eyewitnesses.

The jury returned a verdict of $17,500 and, on motion for judgment non obstante veredicto, the jury verdict was set aside and a judgment of no cause for action was entered by the trial judge.

The question before this Court is: was the plaintiff guilty of negligence as a matter of law, so as to give the trial judge the right to enter the judgment non obstants veredicto? Put another way the question narrows down to this: did the defendant enter plaintiff's lane of travel in advance of the plaintiff's 'assured, clear distance ahead' ¹ or did he enter that lane of travel at some intermediate point within such assured clear distance ahead?

In the light of the extreme conflict in the evidence presented and the total absence of disinterested eyewitnesses, and taking the evidence in the light most favorable to the plaintiff, as we must, we question whether the learned trial judge could be so certain that this was not a case of one vehicle intersecting another vehicle's assured clear distance ahead so as to invoke the rule that plaintiff was negligent as a matter of law. From the evidence presented it seems that the minds of reasonable men might have differed on this issue. Detroit & Milwaukee...