Graham v. United Trucking Service

Decision Date18 May 1950
Docket NumberNo. 22,22
Citation42 N.W.2d 848,327 Mich. 694
CourtMichigan Supreme Court

Lamson, Gilbert & Cole, Saginaw, for plaintiff and appellee.

Stanton, Montgomery, MacKenzie & Cartwright, Saginaw, for defendants and appellants.

Before the Entire Bench.

CARR, Justice.

Plaintiff sustained injuries in a traffic accident and brought suit to recover damages therefor. Certain facts involved in the controversy are not materially in dispute. During the evening of March 27, 1946, between 9 and 10 o'clock, equipment used by the defendant United Trucking Service, Inc., in its business was being operated by the other defendant in a southerly direction on US trunk line 10. Said equipment consisted of a tractor and trailer, the latter carrying a load that projected some 4 1/2 feet back of the trailer. It was approximately 34 feet in length, 8 feet wide, and weighed, with the load that was being carried, a total of 31,966 pounds. The load was taken on at the Saginaw terminal of the corporate defendant.

Defendant Torr claimed that he checked the tires and the lights on his tractor and trailer before leaving the terminal, and that there was some discussion at the time as to the possible effect on the lights if the load shifted. The weather at the time was clear and the pavement was dry. Torr testified on the trial that when he was near the fair grounds in Saginaw the equipment swayed in such manner as to suggest that the load may have shifted, causing him to conclude, as he claimed, that he should inspect the lights on the rear of the load to ascertain if they were still functioning. However, he did not stop immediately, but proceeded for a distance of approximately 10 miles to a bridge in the highway across the Cass river. The record discloses that such bridge was about 65 feet in width with a narrow sidewalk on each side. The floor was paved to a total width of 60 feet. To the north and south of the bridge the pave portion of the highway was 40 feet wide, and the bridge was 240 feet in length. Torr stopped his equipment on the right hand side of the bridge. Whether it was entirely on the west 10 feet was disputed at the trial. He then went to the rear of the load to inspect the lights, finding, as he claimed, that they were functioning properly. Thereupon he started to return to the cab of his tractor.

Plaintiff was riding as a guest passenger in an automobile driven by Floyd Merrow also in a southerly direction on US 10. A highway intersection, referred to in the record as the Frankenmuth junction, was located somewhat less than one half mile north of the bridge. From such intersection to the bridge the highway curved to the west. At the time of the accident the bridge was not lighted. The Merrow car ran into the rear of defendants' equipment, and as a result plaintiff sustained serious injuries. The testimony indicates that the right front end of the automobile struck the left rear corner of the trailer. Defendants' equipment was standing on the bridge for some three or four minutes prior to the accident. Following an investigation by a deputy sheriff of the county, Torr was given a traffic ticket for unlawful parking, and Merrow also received a ticket for driving in such manner that his car was not under control. The record indicates that each pleaded guilty and paid court costs.

In his declaration plaintiff alleged that defendant Torr was guilty of negligence in parking his equipment on the bridge in such manner as to endanger others in lawful use of the highway, and that proper warning lights were not displayed at the rear of the trailer and the load thereon. Plaintiff further designated various sections of the motor vehicle law of the State, in force at the time of the accident, which he alleged defendants had failed to observe. Defendants by their answer denied negligence on their part, and asserted further that the sole proximate cause of the accident was the negligence of Merrow in the operation of his car.

At the conclusion of plaintiff's proofs on the trial defendants moved for a directed verdict on the ground that plaintiff had failed to show that defendant Torr was guilty of negligence constitution the proximate cause of the accident, that plaintiff had failed to show his freedom from contributory negligence, and that the negligence of the driver of plaintiff's car should be imputed to plaintiff, barring recovery. The motion was renewed at the conclusion of the proofs and was taken under advisement under the Empson Act (C.L 1948, § 691.691 et seq., Stat.Ann.1949 Cum.Supp. § 27.1461 et seq. The case was then submitted to the jury, which returned a ver dict in plaintiff's favor in the sum of $20,000. Motions for judgment notwithstanding the verdict and for a new trial were denied.

It is the claim of the defendants on appeal that the motion for judgment notwithstanding the verdict should have been granted. In support thereof it is insisted that Merrow was guilty of negligence as a matter of law in the operation of his automobile, and that such negligence was imputable to plaintiff. The record supports defendants' claim as to Merrow's negligence in not keeping a proper outlook and also in proceeding without having his car under proper control. The trial court so charged the jury. However, defendants' claim that such negligence was imputable to plaintiff is without merit under the decisions of this court in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697, and subsequent cases, including Mitchell v. DeVitt, 313 Mich. 428, 21 N.W.2d 111. The record is clear that plaintiff was merely a guest passenger and as such was not entitled to exercise any right of control over the automobile or its driver.

It is further argued that plaintiff failed to establish that he was himself free from contributory negligence. The record indicates that during the afternoon, and perhaps early evening, prior to the accident plaintiff and Merrow had each drunk several glasses of beer, part of which was purchased by plaintiff. There is, however, no proof that Merrow was under the influence of alcohol at the time of the accident. Under the circumstances it cannot be said, as a matter of law, that plaintiff was guilty of negligence in riding with Merrow. The testimony fails to show that the latter was incapable of operating the vehicle in a safe and proper manner. Moreover, if such was the case, there was no evidence tending to show conduct on his part of such character as should have caused plaintiff to refuse to ride with him. Hemington v. Hemington, 221 Mich. 206, 190 N.W. 683.

It was also claimed by defendants that plaintiff was guilty of negligence as a matter of law in failing to warn Merrow of the danger of running into defendants' equipment. As before noted, plaintiff was merely a guest passenger without the right to exercise control over the vehicle or its driver. At the time he observed the trailer on the bridge it was equally visible to Merrow, and under the circumstances plaintiff was not required, as a matter of law, to assume that Merrow would not see it in time to avoid striking it. The interval of time between plaintiff's observation and the impact was brief. It appears from the testimony that Merrow discovered the trailer before striking it, and attempted to avoid it by turning to the left, but without avail. All that was required of plaintiff was the exercise of ordinary care for his own safety. Moore v. Rety, 314 Mich. 52, 22 N.W.2d 68. Whether he did observe the duty resting on him was a matter for the jury to determine, and the issue was properly submitted by the trial court.

It is further contended on befalf of defendants that the negligence of Merrow was the sole proximate cause of the accident and of plaintiff's injuries. As before stated, the trial judge concluded from the testimony that Merrow was guilty of negligence, and charged the jury accordingly. The evidence in the case disclosed that defendant Torr was guilty of negligence in parking his equipment on the bridge in violation of the statute. C.L. 1929, § 4719, as amended by P.A. 1945, No. 147, C.L. 1948, § 256.327, Stat.Ann.1947 Cum.Supp. § 9.1587, in effect at the time of the accident, provided in part:

'Sec. 27. Parking prohibited in specified places.

'(a) No person shall park a vehicle, except when necessary to avoid conflict with law or other traffic or in compliance with the directions of a police officer or traffic control device, in any of the following places:

* * *

* * *

13. Upon any bridge or other elevated structure upon a highway or within a highway tunnel.'

On the trial plaintiff also relied on an alleged violation of C.L. 1929, § 4718, as amended by P.A. 1939, No. 318, C.L. 1948, § 256.326, Stat.Ann.1947 Cum.Supp. § 9.1586, forbidding parking a vehicle, outside the limits of any city or village, upon the paved or main-traveled part of the highway when practicable to park off such part of the highway. It was the claim of the plaintiff in substance that the entire bridge, other than the sidewalks, was within the paved portion of the highway, and in any event that defendants' trailer was standing on the west 10 feet of the bridge in such a position that...

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