Elrich v. Schwaderer
| Decision Date | 02 June 1930 |
| Docket Number | No. 81.,81. |
| Citation | 230 N.W. 902,251 Mich. 33 |
| Parties | ELRICH v. SCHWADERER. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Oakland County; Frank L. Doty, Judge.
Action by Percy Elrich, as administrator of the estate of Kenneth Elrich, deceased, against E. B. Schwaderer. Judgment for plaintiff, and defendant brings error.
Reversed without a new trial.
Argued before the Entire Bench.
L. J. Carey, of Detroit, for appellant.
Brownell & Gault, of Flint, for appellee.
Plaintiff's decedent was driving his automobile in a southerly direction on the Dixie Highway, between Drayton Plains and Pontiac. Defendant, a paving contractor, was engaged in widening the 20-foot concrete road, to which a strip 10 feet in width had been added on the east side, and a strip of like width was in process of construction on the west side. For this purpose defendant was using a moveable concrete mixer, a bulky piece of machinery, much larger in size than an ordinary automobile, and which at the time of the accident occupied almost the entire west half of the old pavement at the place where it was parked. On the night of August 31, 1928, it was misty; there had been, at intervals, very severe storms, with a tremendous downpour of rain. At 1:30 a. m., or thereabouts, decedent, while going in a southerly direction, drove into the concrete mixer with such force that his automobile was hurled to the other side of the old road, where, in turn, another car coming in a northerly direction ran into it. The other car was not badly damaged and was able to proceed on its own power. The impact with the concrete mixer must have been very great, for decedent's automobile was totally wrecked and decedent suffered such severe injuries that he survived only eleven days. Plaintiff as administrator claims that decedent's injuries were caused through defendant's negligence in failing to keep warning lights properly lit on the concrete mixer. Defendant claims that there were proper lights burning at the time of the accident, and, further, that decedent was guilty of contributory negligence, for which reason plaintiff should not recover. Timely motion for judgment non obstante veredicto was made, but denied. Inasmuch as the jury decided in plaintiff's favor, the sole question for our consideration is whether decedent was guilty of contributory negligence.
At the side of each end of the part of the roadway over which decedent was driving at the time of the accident were large signs which read: ‘Road under Construction, Drive at your own Risk.’ Whether or not they were sufficiently illuminated so that decedent should have seen them was not established by the testimony. There seems, however, to be no doubt that there were other warnings sufficient to put one on guard and show that the road was under repair. At frequent intervals along the new part of the road there were wooden horses to which red lanterns were attached. The testimony indicates that some of these lights were extinguished but others were lit. The question whether decedent was guilty of contributory negligence or not in driving along the road under the conditions, at the rate indicated by the force of the impact, and in not slowing his car when the concrete mixer came within range of his lights and avoiding the collision, has been before this court so frequently that it is unnecessary to repeat what has been said in the following cases: Spencer v. Taylor, 219 Mich. 110, 188 N. W. 461;Holsaple v. Superintendents of Poor of Menominee County, 232 Mich. 603, 206 N. W. 529;Lett v. Summerfield & Hecht, 239 Mich. 699, 214 N. W. 939, 940;Haney v. Troost, 242 Mich. 693, 219 N. W. 594;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. In the aforesaid cases the accident happened under somewhat similar circumstances, and we held there was contributory negligence as a matter of law.
Plaintiff attempts to distinguish this case on account of Act No. 318 of the Public Acts of 1927. Title 4, § 46, of said act, provides as follows: ‘(a) The headlamps of motor vehicles shall be so constructed, arranged, and adjusted that, except as provided in subsection (c) of this section, they will at all times mentioned in section forty-four and under normal atmospheric conditions and on a level road produce a driving light sufficient to render clearly discernible a person two hundred feet ahead, but shall not project a glaring or dazzling light to persons in front of such head lamp.'
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