Lett v. Summerfield

• Decision Date: 29 July 1927
• Docket Number: No. 53.,53.
• Citation: 239 Mich. 699,214 N.W. 939
• Parties: LETT v. SUMMERFIELD & HECHT et al.
• Court: Michigan Supreme Court

239 Mich. 699

214 N.W. 939

LETT

v.SUMMERFIELD & HECHT et al.

No. 53.

Supreme Court of Michigan.

July 29, 1927.

Error to Circuit Court, Wayne County; Samuel G. Houghton, Judge.

Action by Eunice Lett, administratrix of the estate of Thomas Lett, deceased, against Summerfield & Hecht and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before the Entire Bench, except SNOW, J. Walter M. Nelson, of Detroit (Walter E. Pear, of Detroit, of counsel), for appellant.

Frederick J. Ward, of Detroit, for appellee, Summerfield & Hecht.

Robert E. Plunkett, of Detroit, for appellee Ray H. Rivett.

Elmer R. Milburn, of Detroit, for appellee August Radtke.

FELLOWS, J.

A furniture van owned by Summerfield & Hecht, and operated by the individual defendants, its employees, was being used to make a delivery of furniture out John R. street and over in Oakland county. It had nearly reached the ten-mile road, when the employees, not being certain just where the point of delivery was located, stopped, and one of them went into a store for information. The van was left standing partly on and partly off the cement pavement, which was 18 or 20 feet wide. The van had no tail light. It was about 6 o'clock of a December evening, quite dark and foggy, and some rain was falling. There was very little traffic on the street. The end gate was down in a horizontal position. Decedent was riding with one Bradley in a Ford. The Ford came in collision with the van, and decedent was so seriously injured that he survived but a short time.

The proofs introduced on behalf of plaintiff were abundantly sufficient to take the question of defendant's negligence to the jury. We assume, therefore, for the purpose of decision, that defendants were negligent. But plaintiff's counsel insists they were very negligent and that they were guilty of gross negligence. In the recent case of Union Trust Co. v. Detroit, etc., Ry. (Mich.) 214 N. W. 166, we pointed out that, inasmuch as the doctrine of comparative negligence does not obtain in this state, gross negligence, when used to indicate great negligence, or more negligence than the other party is guilty of, likewise does not obtain in this jurisdiction, and we there cited Gibbard v. Cursan, 225 Mich. 311, 196 N. W. 398, where the authorities are reviewed at length. Counsel for plaintiff also relies on Patton v. Grand Trunk Western Ry. Co., 236 Mich. 173, 210 N. W. 309. But in that case we ordered a rehearing, and, upon such rehearing, decision was rested on the doctrine of subsequent negligence. 238 Mich. 397, 213 N. W. 708. Here no claim is made or can be made of subsequent negligence. No case of gross negligence so-called is made on this record.

The trial judge directed a verdict for the defendants on the ground of the contributory negligence of decedent's driver, imputable to him on the authority of Spencer v. Taylor, 219 Mich. 110, 188 N. W. 461. In that case it was said by Mr. Justice Clark, speaking for the court:

‘We think the court was right in holding plaintiff guilty of contributory negligence as a matter of law. It is well settled that it is negligence as a matter of law to drive an automobile along a public highway in the dark at such speed that it cannot be stopped within the distance that objects can be seen ahead of it.'

This is in consonance with the uniform holding of this court. See Harnau v. Haight, 189 Mich. 600, 155 N. W. 563;Ott v. Wilson, 216 Mich. 499, 185 N. W. 860;Gleason v. Lowe, 232 Mich. 300, 205 N. W. 199;Holsaple v. Superintendents of Poor of Menominee County, 232 Mich. 603, 206 N. W. 529. It is urged that this rule was modified in Diederichs v. Duke 234 Mich....