Martin v. J. A. Mercier Co.

• Citation: 238 N.W. 181,255 Mich. 587
• Decision Date: 05 October 1931
• Docket Number: Nos. 35-40.,s. 35-40.
• Parties: MARTIN et al. v. J. A. MERCIER CO. et al.
• Court: Michigan Supreme Court

255 Mich. 587

238 N.W. 181

MARTIN et al.

v.J. A. MERCIER CO. et al.

Nos. 35-40.

Supreme Court of Michigan.

Oct. 5, 1931.

Appeal from Circuit Court, Wayne County; Neil E. Reid, Judge.

Actions by Burie Martin, administrator of the estate of Minnie Lee Martin, deceased, Burie Martin, individually, William Lucas, by his next friend, Herbert Lucas, Orie Lucas, and Herbert Lucas, against the J. A. Mercier Company, a Michigan corporation, and the City of Lincoln Park. Judgments for plaintiffs, and defendants appeal.

Reversed as to defendant city, and affirmed as to defendant corporation.

Argued before the Entire Bench.Vandeveer & Vandeveer, of Detroit, for appellant J. A. Mercier co.

Birnkrant, Birnkrant & Birnkrant, of Detroit (William E.Tarsney, of Detroit, of counsel), for appellees.

FEAD, J.

Plaintiff had verdict and judgment on trial before the court without a jury, for damages in an automobile accident. Five other cases are consolidated on appeal. In the latter, counsel agreed upon damages after trial of the principal case, and plaintiff contends the appeals should be dismissed because the judgments were entered by consent. The record is clear that stipulation was as to damages, not liability, and the motion to dismiss is denied.

The testimony was in sharp dispute, and the principal question is whether the verdict is against the great weight of the evidence. The court believed plaintiff and his witnesses.

October 2, 1926, some 200 feet north of London street in the city of Lincoln Park, a county drain excavation, 40 feet wide and 8 feet deep, extended across Fort street. Defendant Mercier Company was constructing the drain, under contract with the county drain commissioner. The excavation itself was not guarded by lights or barriers, but 20 feet north of London street a barricade had been erected by Mercier Company under conditions of permit from the county road commissioners. To the west of it was a detour, so poorly marked that drivers familiar with the situation and looking for the detour passed it by. For a mile south of London street the road was under repair in spots, but was open to traffic, and the repaired places were marked by small wooden horses bearing lights.

A few days before the accident plaintiff had taken his family south over Fort street, which, then, was not under repair. On his return he reached the repair zone in the morning. It had rained, was misty and dark, and slippery under foot. After threading his way through the repair zone, Martin came to the London street barricade at 5:20 a. m., driving at 15 miles per hour. He said the barrier extended only part way across the 20-foot pavement, he thought the road was open as it had been to the south, and he passed on the west side. The pavement was somewhat muddy, but apparently open, and Martin said he proceeded until he saw an excavating machine about 100 feet ahead and which was beyond the excavation, upon which he applied the brakes and tried to stop, but the car ran into the drain, fatally injured his wife, and hurt other members of his family and relatives in the car.

Plaintiff knew the barricade was there because he saw it. Defendants had knowledge of its condition a few minutes before the accident. But they disagreed as to its character. Plaintiff claims it consisted of an X standard at about the middle of the pavement, supporting a plank which extended to the east and rested on the ground. Defendants claim it was solidly built of planks spiked to posts set in the ground at each edge of the pavement and a supporting post in the center, the whole extending 2 or 3 feet beyond the pavement on each side, but with a driveway around each end for trucks.

Plaintiff's claim is supported by several disinterested witnesses and by the only evidence substantially contemporaneous with the accident, a written statement by a policeman, defendants' witness. Most of defendants' witnesses are in their employ. The probabilities do not favor defendants more than plaintiff. The finding of defendant's negligence in not properly guarding the excavation was not against the great weight of evidence.

Plaintiff's contributory negligence must be viewed in the light of the road to the south, in which he had encountered local barriers to indicate repair spots on an open highway, the similarity of the barricade to such barriers, and the lack of warning lights at the excavation, which it should have borne. If the barricade indicated a local repair spot, plaintiff had a right to assume that, except for such spot, the street was reasonably fit for travel. He was not charged with the duty to anticipate that the street was closed or that there was an excavation across it. The only danger against which he was bound to guard was what he saw or should have seen.

The rule that a driver must see objects and be able to stop within the range of his lights, applied to things on the road, does not apply to holes in the road. A hole often melts into the road so it cannot be distinguished from the surface except at short range. Whether and when a hole or excavation...