Dismukes v. Michigan Exp., Inc.

• Decision Date: 03 December 1962
• Docket Number: No. 2,2
• Parties: William F. DISMUKES, Sr., Plaintiff and Appellant, v. MICHIGAN EXPRESS, INC., a corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 238

118 N.W.2d 238

368 Mich. 197

William F. DISMUKES, Sr., Plaintiff and Appellant, v. MICHIGAN EXPRESS, INC., a corporation, Defendant and Appellee.

No. 2.

Supreme Court of Michigan.

Dec. 3, 1962.

Butzbaugh, Page & Byrns, Benton Harbor, for plaintiff and appellant.

Paulson, Bennett & Palmer, Kalamazoo, for defendant and appellee.

Before the Entire Bench.

KELLY, Justice.

A jury in the Berrien county circuit court awarded plaintiff $15,000 damages for injuries sustained as the result of plaintiff's collision with defendant's parked tractor and trailer.

Defendant's motion for judgment non obstante veredicto was granted by the trial court on the ground that plaintiff was guilty of negligence as a matter of law and that plaintiff's negligence was a proximate cause of his injuries.

Plaintiff, on November 14, 1958, at about 8:00 p. m., was driving a 1954 Chevrolet north on north State street in the city of St. Joseph, Michigan. North State is a 2-lane, rough, uneven street, running north and south, and located in an industrial section of the city. Some 335 feet south of the point of the collision on State street, on the crest of a hill, are 2 sets of railroad tracks. Just north of the tracks, entering from the east, is Camber road, which is a 2-lane, hard-top road, serving the city's industries and their parking lots to the east. Some 300 feet north of the railroad tracks, and entering north State street from the east, is Graves street, which enters into the Whirlpool parking area and deadends at the east side of north State street. There was no fixed curbing on the east side of north State street north of the railroad tracks for some 210 feet.

North of the north side of Graves street is an open concrete surfaced area, used for unloading at a Whirlpool Corporation building and entered into from north State street.

Sometime after 7:00 p. m., on November 14, 1958, 2 tractor-trailers owned by defendant came to north State street to unload their cargoes of steel at the Whirlpool dock. The truck driven by Arthur Fitch unloaded first, and then backed out of the unloading bay onto north State street so the second trailer could unload. Fitch, after backing out, then parked in a southerly direction directly facing oncoming traffic, approximately 1 to 2 feet from the east curb on north State street, just north of the Graves street intersection. Fitch then proceeded to assist the other driver unload, leaving his vehicle unattended.

There was conflicting testimony as to whether or not the tractor-trailer had its parking lights on. Officer Hahn testified he observed no lights on the truck when he saw it a few minutes after the collision. No witnesses actually observed the accident. The testimony of defendant's witnesses was that the truck had its parking lights on at the time of collision (a clearance light at each side, 2 clearance lights on the top of the cab, and 2 clearance lights at the rear of the trailer). Defendant's witness, Arthur Ludwig, a guard at Whirlpool plant number 1, testified he was making the round of his stations shortly before the accident and that he observed the parked truck with amber lights illumined on both sides of the top of the truck.

On north State street, at the point of the accident, many signs were posted by the city of St. Joseph prohibiting parking on either side. Defendant admits violation of not only the parking ordinance of St. Joseph, but, also, of C.L.S.1956, § 257.674 (Stat.Ann.1960 Rev. § 9.2374), which makes parking unlawful where an official sign prohibits same.

Plaintiff, William F. Dismukes, testified that on the evening of November 14, 1958, at about 8:00 p. m., he was returning to his home after a business trip to Benton Harbor; that his brakes and lights were operating properly, and that he had set his lights on 'dims'; that he was driving 20 to 25 miles per hour and made observation as he approached the railroad tracks on north State street; that he did not see anything parked or located south of Graves street after passing over the tracks; that he had driven this route many times and as he crossed the tracks he made observation and could see outlines of the buildings on the north and south sides of Graves street; that he made observation at Camber road, the Whirlpool parking lot entrance, and Graves street, and did not observe anything that might have been a truck parked on the east curb just north of Graves street intersection. Plaintiff further testified that he did not see anything as he crossed Graves street on north State street and did not remember anything about the collision; that he was approaching the Graves street intersection and 'the next thing I knew I was in the hospital.'

On cross-examination plaintiff stated he had traveled this route many times during the past 3 years, both during the nighttime and the daytime. He indicated he would have been able to have stopped his car within a distance of 40 feet, traveling 25 miles per hour, but that he never saw defendant's truck ahead of him; that he was traveling close to an imaginary curb line.

On redirect examination plaintiff testified he had no memory of crossing Graves street on the night of the accident; that he had never seen a car or truck parked along the east side of north State street in any of the times he traveled it; and, on recross-examination, plaintiff stated he could see to the north line of Graves street, but nothing beyond that before the collision.

Later in the trial plaintiff was recalled to the stand and testified on redirect examination that his memory fails of the accident approximately 10 to 12 feet south of the Graves street intersection. He testified he could see across the intersection, and possibly 8 or 10 feet beyond the intersection itself; that the intersection was 32 feet and that from this point where he lost his memory he could see a total of some 54 to 56 feet ahead of him, but did not see a truck parked on north State street.

Plaintiff's witness, Neil Berndt, city engineer, testified as follows: That there were posted 'no parking' signs on both sides of north State street where the accident occurred; that there were 2 street lights from the railroad tracks to a point 400 feet north on north State street, but that there were no street lights on the east side of north State street.

Officer Hahn testified that it was not a direct, head-on collision; that the 'center of the hood of the automobile probably fell right on the line of the right side of the semi-tractor and trailer'; that he did not notice any lighting on the tractor when he arrived at the scene,...