Holsaple v. Superintendents of Poor of Menominee Cnty.

• Decision Date: 22 December 1925
• Docket Number: No. 135.,135.
• Parties: HOLSAPLE v. SUPERINTENDENTS OF POOR OF MENOMINEE COUNTY.
• Court: Michigan Supreme Court

232 Mich. 603

206 N.W. 529

HOLSAPLE

v.SUPERINTENDENTS OF POOR OF MENOMINEE COUNTY.

No. 135.

Supreme Court of Michigan.

Dec. 22, 1925.

Error to Circuit Court, Menominee County; Richard C. Flannigan, Judge.

Action by Lovica Holsaple against the Superintendents of the Poor of Menominee County. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.John J. O'Hara, of Menominee (Matt F. Bilek, of Menominee, of counsel), for appellant.

Kenneth O. Doyle, of Menominee (Doyle & Barstow, of Menominee, of counsel), for appellee.

STEERE, J.

This action was brought to recover damages for injuries sustained in an automobile accident which occurred about 8:15 in the evening of August 3, 1922, on trunk line highway No. 15 between the villages of Daggett and Talbot in Menominee county, Mich.

Plaintiff was riding with her husband in an automobile which he was driving north. They both saw a car approaching them from the north some distance away. It was then nightfall and both cars had their headlights turned on. As they approached each other plaintiff's husband dimmed his headlights and turned on his spotlight, slowing down to about 15 miles an hour, as they testify, driving on the right-hand side of the road, and watching ahead. The car approaching them from the north did not dim its lights. So proceeding, the car which plaintiff's husband was driving ran into the rear of a horsedrawn lumber wagon, loaded with 16 steel rails, which carried no light, and was also going north on the right-hand side of the road. The front wheel and fender of plaintiff's car struck the rear axle and left rear wheel of the wagon, which extended into the traveled portion of the highway. Neither plaintiff nor her husband saw the wagon until they collided with it. The collision ‘broke the reach of the wagon and four spokes of the left rear wheel, denting the tire and rim of the wheel.’ The driver of the wagon testified that he shouted a warning twice to the people in the car behind him. It was then about a quarter after eight; ‘wasn't dark and it wasn't light.’ Their car and the one then approaching him from the opposite direction were the first he saw with lights turned on. He was sitting on the left side of his wagon between the front and rear wheels, watching, and intending to give notice by shouting when they came along, which he did as the car following him drew near. Plaintiff's husband testified that just after the accident the driver of the wagon said he had ‘hollered’ at him twice, to which he replied, ‘I didn't hear you; You didn't have any light, and I could see nothing.’

Plaintiff was the only person injured by the accident. She was sitting on the right-hand side of the front seat beside her husband. That she was seriously and painfully hurt is not disputed. Just how serious and permanent her injuries were was an issue of fact. She testified of the accident in part as follows:

‘As we drove along, we were talking, and I was looking ahead. I saw a car coming from the north with its lights on. As this car came along, Mr. Holsaple turned on the spotlight and dimmed his headlights. I am sure he wasn't running over 15 miles per hour. When my husband's car collided with the wagon, I was thrown up in the corner of the car and got struck just above my eyes, and my nose, and my right side struck the corner of the car. My nose and three ribs were broken and my jaw hurt. After the accident my husband took me to Daggett, to Dr. Landsborough.’

It was conceded at commencement of the trial that the county of Menominee maintained a county poor farm at Talbot, in charge of its superintendents of the poor; that the driver of the horse-drawn wagon was an employé there, acting under their direction in drawing the load of rails from Wallace to Talbot. No question was raised concerning the pleadings or that the action was not planted against the proper defendant.

At conclusion of the testimony, on motion of defendant's counsel, the court directed a verdict for the defense, followed by judgment, on the ground of contributory negligence of plaintiff's husband, as shown by his own testimony and the undisputed facts attending the accident.

Plaintiff's claim of negligence is based on defendant's violation of Act 126, Pub. Acts 1921, requiring horse-drawn vehicles traveling trunk line highways to display a proper light ‘from an hour after sunset to one hour before sunrise.’ It is undisputed that no light was displayed from defendant's horse-drawn vehicle at the time of the accident. Contributory negligence is a proper defense, even if defendant was violating the statute. Deal v. Snyder, 203 Mich. 273, 168 N. W. 973.

Plaintiff was sitting in the front seat of their auto on the right of her husband, who sat nearest the center of the road and was driving. They were talking as they drove along. Both testified they were looking ahead and watching the road. They were driving on a long, straight stretch of highway. Both testified they saw the on-coming lighted car far away and watched it approach. Both testified they did not hear the warning call of the driver of the wagon just ahead of them on their side of the road going in the same direction, nor see it until they struck it. The excuse given by each for not sooner seeing it was that the bright lights of the automobile coming from the north blinded them. There is nothing in the record to show that the approaching automobile at any time changed its lights or did anything to take them by surprise.

Plaintiff's husband, who was driving their car, testified:

‘I saw this car from the north a half mile away. It was a straight view. The first thing I did when I saw it was to turn on my spotlight and dim my headlights, as soon as the light shone strong enough to bother me any. With my headlights on bright I could see between 200 and 300 feet. With my spotlight and the dimmers on I could see 150 to 200 feet. With my dimmers on I was going not to exceed 15 miles, and after putting the dimmers on I slowed down. Traveling at 15 miles an hour, I could bring my car...