Humphrey v. Wayne Cnty.

• Citation: 241 N.W. 212,257 Mich. 398
• Decision Date: 02 March 1932
• Docket Number: 191.,Nos. 190,s. 190
• Parties: HUMPHREY v. WAYNE COUNTY. McARTHUR v. SAME.
• Court: Michigan Supreme Court

257 Mich. 398

241 N.W. 212

HUMPHREY

v.WAYNE COUNTY.

McARTHUR

v.SAME.

Nos. 190, 191.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Wayne County; Guy E. Smith, Judge.

Actions by Ruth E. Humphrey, administratrix of the estate of Clarence Humphrey, deceased, and David McArthur, respectively, against the County of Wayne. Judgments for plaintiffs, and defendant appeals.

Judgments set aside, cases remanded, and judgments entered for defendant.

Argued before the Entire Bench.Harry S. Toy and Oscar A. Kaufman, both of Detroit, for appellant.

Woodruff & Woodruff, of Wyandotte, and Atkinson, Ortman & Shock, of Detroit (Frank W. Atkinson, of Detroit, of counsel), for appellee.

NORTH, J.

These two suits, consolidated in one appeal, are for damages sustained by the plaintiffs as a result of an automobile accident. Upon trial in the circuit court without a jury plaintiffs each had judgment. The defendant has appealed.

About 6:30 in the morning of February 6, 1925, Clarence Humphrey, husband of plaintiff Ruth E. Humphrey, was riding in a Ford automobile owned and driven by the plaintiff David McArthur. Another man was riding with them to the Ford factory where they were employed. Due to heavy fog visibility was very bad. As they were going along Fordson road, they reached the point where it forked into Dix avenue near the approach to the bridge over River Rouge. From their junction point the two highways use the same approach. A driver coming from the Fordson road to the bridge must turn his vehicle to the right, while one coming from Dix avenue must curve somewhat to the left. The southerly bank of River Rouge at this point is at least twenty or twenty-five feet north of the northerly line of Dix avenue. If one driving northerly on Fordson road at its junction with Dix avenue continued straight ahead he would cross Dix avenue, pass over an intervening strip of land, and go over the bank into River Rouge. Or if after passing Dix avenue he bore somewhat to his right he would meet with the same fate. At the time of the accident there were barriers on either side of the bridge approach extending from ten to twenty feet westerly from the bridge proper. On the morning in question, driving very slowly and finally practically stopping his car, Mr. McArthur reached the point where he saw to his right what he supposed was the southerly barrier. He proceeded on to what he thought was the approach to the bridge. He was mistaken. The barrier which he had observed was in fact that on the northerly side of the approach. Passing this and going down a slight grade, he soon discovered he had entirely crossed over the approach to the bridge and was heading toward the river. He applied his brakes, but due to the icy condition was unable to stop. His car passed over the bank and went some considerable distance out into the stream. Mrs. Humphrey's husband was drowned, but Mr. McArthur and the other man succeeded in getting back to shore.

Plaintiffs predicate their right to recover on defendant's alleged negligence in failing to safeguard the approach to the bridge by proper barriers, and also its failure to properly light the bridge so that persons attempting to cross in the dark would be able to locate the approach. Defendant urges that it was not guilty of negligence, and that Mr. McArthur was guilty of contributory negligence barring recovery in both cases.

We pass the question of defendant's neglidence because we find the issue of contributory negligence controlling. Mr. McArthur testified:

‘It was a real foggy morning. * * * It was real dark in February. Awfully foggy, * * * couldn't see very far, it was so foggy. * * * When I approached (the bridge) I don't believe I was going over 10 miles an hour, and there is a kind of a curve in there and so I slowed down there because I was not real sure where I was and just as I slowed down and was ready to stop, why we seen the railing on the bridge and the end that was on the right hand side; we thought we was all right so I started up again but there was a railing on the left hand side, instead of making a curve we went right straight across; it was so foggy we couldn't see; it just came up for an instant. * * * After I started up I wasn't going over 5 miles an hour. * * * We went over the bank and about 10 feet down into the water and between 22 and 25 feet to the bottom. * * * No sir we didn't see a light (on the bridge) that morning. * * * I had driven over (the road) for two years, not every day but pretty near. * * * I knew the road, yes. * * *

‘Did it ever appear to you to be a dangerous place? A. Yes sir. * * *

‘Q. Do you remember distinctly what the situation was as you approached the bridge that morning? A. I knew you couldn't see anything, it was so foggy.

‘Q. Did you have your headlights on? A. Yes sir; windshield open.

‘Q. How far ahead of the car could you see at that time? A. I don't think you could see without there was an object; * * * you could see a light some 50 or a 100 feet; something like that at times, not at all times of course; sometimes you would run into a heavy bank (of fog), then again it would be a little bit lighter. Fordson was paved for a short distance. It ran up to Dix Avenue. * * * I could see where we left the pavement. That is where I began to slow down to stop, to see where to make my turn.

‘Q. How far ahead of you could you see the pavement...