McNair v. State
| Decision Date | 06 April 1943 |
| Docket Number | No. 64,January Term, 1943.,64 |
| Citation | 305 Mich. 181,9 N.W.2d 52 |
| Parties | McNAIR v. STATE et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Claim in the Court of Claims by Charles McNair against the State of Michigan and the State Highway Department for damages for alleged negligent maintenance of a state highway. From a judgment denying relief, petitioner appeals.
Affirmed.Appeal from Court of Claims, John Simpson, Circuit Judge, presiding.
Before the Entire Bench.
Cozadd & Shangle, of Detroit, for petitioner-appellant.
Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Meredith H. Doyle, A. Floyd Blakeslee, and Daniel J. O'Hara, Asst. Attys. Gen., for appellees.
Petitioner, Charles McNair, filed a claim in the court of claims for damages against the State highway department for negligence in the maintenance of a State highway.
Charles McNair, his wife and daughter left Detroit for an automobile ride on Sunday September 1, 1940. The party arrived at Sandusky, then drove to Carsolville and proceeded north on M-51, which was also the temporary route for US-25. After traveling north a few miles petitioner's daughter, who was the driver of the car, turned east and arrived at Forrester. At this village the car proceeded north over what formerly had been US-25 highway, but which at that date was under construction for the purpose of being repaved.
Between Forrester and the place where the accident occurred, a distance of about a mile, work had been done on three culverts. About one mile north of Forrester the contractor had removed a 12-inch culvert and had replaced the same with a two foot cement tile culvert. The top of the tile was about six inches above the old road bed and on top of the tile was about one foot of sand and gravel. This sand and gravel had been ramped off for a distance of five to ten feet to the north and south of the center of the tile and could be seen for a distance of 75 to 100 feet. Immediately north of the culvert, there was a depression in the highway of a depth of eight or ten inches which could not readily be seen by drivers of cars approaching from the south. It was on the east side of the road and extended half way across the road so that cars traveling north would naturally hit it.
Petitioner was injured during the time the car came in contact with the raised culvert and the depression. He filed a claim with the court of claims. A hearing was had and the presiding circuit judge denied petitioner any relief, saying: ‘From the facts of this case, the petitioner's daughter was guilty of contributory negligence, which contributed to the petitioner's injuries and said negligence being imputed to the petitioner, the petitioner cannot recover.'
Petitioner appeals and contends that the court erred in applying the rule that ‘a driver of a motor vehicle must operate his motor vehicle at such a speed as to be able to stop within the assured clear distance ahead’ when the obstruction is a ‘bump’ and a ‘depression’ in the highway; and that the finding of the trial court that the driver of the car was guilty of contributory negligence is against the overwhelming weight of the evidence and is not supported by the evidence.
In view of the fact that the finding of facts by the presiding judge amounted to a directed verdict for the defendant, we shall consider the evidence in the light most favorable to petitioner. Under such a construction, it appears that petitioner was traveling on a gravel road at a speed of approximately 35 miles per hour; that there was nothing to call the driver's attention to the fact that the road was under construction; that the condition of the road north of Forrester was good-‘the condition of the highway from Forrester north on the first of September was as fair a condition as any gravel road’; that there were no signs erected to warn the public that this ‘bump’ was in the highway; and that as the car in which petitioner was riding hit the elevation in the highway it immediately hit the depression just to the north and petitioner was thrown against the top of the car, then to the floor behind the front seat as a result of which he sustained a compressed fracture of the spine.
In our opinion, the rise in the road...
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