Meyer v. Weimaster

• Decision Date: 28 December 1936
• Docket Number: No. 19.,19.
• Citation: 270 N.W. 715,278 Mich. 370
• Parties: MEYER v. WEIMASTER.
• Court: Michigan Supreme Court

278 Mich. 370

270 N.W. 715

MEYER

v.WEIMASTER.

No. 19.

Supreme Court of Michigan.

Dec. 28, 1936.

Action by John H. Meyer against Earl H. Weimaster, doing business as the Weimaster Truck Company. From a judgment for plaintiff, defendant appeals.

Affirmed.Appeal from Circuit Court, Kalamazoo County; George V. weimer, judge.

Argued before the Entire Bench, except POTTER, J.

Mason, Sharpe & Stratton, of Kalamazoo, for appellant.

Leo W. Hoffman, of Allegan, for appellee.

BUSHNELL, Justice.

Plaintiff, a resident of Van Buren county, brought this action against defendant, a resident of Kalamazoo county, for damages resulting from an automobile accident which occurred on U. S. 12 in the state of Indiana, about three or four miles east of Michigan City.

Plaintiff was returning to his home from a hunting trip in the northern peninsula of Michigan, by way of Chicago, and was driving a Ford pickup truck in an easterly direction. Defendant's tractor and semitrailer, hereinafter designated as a truck, had been proceeding in the same direction on U. S. 12 until it developed wheel-bearing trouble and came to a stop west of the intersection of U. S. 12 and Indiana State Highway 212. U. S. 12 is a four-lane paved highway running east and west; Indiana 212 is a paved highway that joins U. S. 12 from the southwest. Signs are erected near the junction indicating that traffic on U. S. 12 should stop before entering the intersection.

Defendant's truck, measuring about 28 feet in length and loaded with baled scrap paper, had been parked on the right-hand, south lane of the paved portion of U. S. 12, because a wheel bearing had burned out and it was considered dangerous to proceed further. The driver of the truck and defendant's mechanic, who had been following in a smaller truck, determined that it was necessary to stop upon the pavement because the unpaved portion of the side of the road would not support the weight of the truck.

After placing a burning kerosene flare at the side of, ahead of, and behind the truck, they switched on the electric signals of the truck itself. The truck signals consisted of headlights, a light at each back corner, and three green and one red light between the corner ones. After satisfying themselves that the truck was properly protected as to burning signal lights, the driver and the mechanic went back to Michigan City to secure replacements. They testified that when they returned, they found all the flares extinguished; one was tipped over and smashed, and one could not be found. The electric lights on the truck were also out, because, as they stated, the rear end of the truck had been smashed and the main wire leading to the rear lights had been torn loose.

Shortly after defendant's employees had left the parked truck, plaintiff Meyer, traveling at an estimated speed of 35 miles an hour on U. S. 12, approached this intersection. He testified that he had just passed a line of six or seven cars headed in the opposite direction and had dimmed his own lights to prevent blinding the drivers of these oncoming vehicles. He said that he saw defendant's truck for the first time when he was about 60 feet away, but that there were no lights on or about the vehicle. He stated that he believed at first that the truck was moving in the same direction as his car, but when he determined that he was mistaken, and that it was standing still, he took his foot off the accelerator and, without applying the brakes, swung as far to the left as possible. He did not clear the parked truck, but, as he states it, struck something at the rear of it and was rendered unconscious as a result of the crash.

His passenger, Harry Funk, stated that he did not see the truck until plaintiff started to swing to the left to go around it, and that no lights or flares were burning. Neither Meyer nor Funk observed any stop signs, although they claimed to be looking for them.

Several disinterested witnesses testified that immediately before and just after the accident, they had seen the unattended truck parked on the highway without lights. There is some conflict in the testimony regarding the position of the truck with respect to the intersection, and estimates varied between 33 and 110 feet; all witnesses agreed, however, that the truck was not parked within the intersection itself. The testimony is also in conflict as to the presence and positions of warning or stop signals in the immediate vicinity. Several of plaintiff's witnesses say that a flashing, electric stop sign was installed near the intersection following the accident; others say that they did not know when it was installed or whether it was there at that time. The evidence indicates that the plaintiff's car struck the left end of the tailgate on the defendant's truck, which tailgate was extending out about 4 feet; it was supported by chains at each side, was raised up somewhat from a horizontal position, and held a bale of paper.

Three questions are raised on appeal: Was plaintiff guilty of contributory negligence as a matter of law and should the court have directed a verdict in favor of defendant? Did the court err in permitting the jury to speculate upon defendant's negligence because of the lowered tailgate? Was a verdict and judgment of $4,000 excessive under the circumstances?

The accident happened in Indiana, and the action was brought in Michigan; therefore all matters relating to the right of action are governed by the laws of Indiana, and all matters relating purely to the remedy, by the laws of Michigan. Petrusha v. Korinek, 237 Mich. 583, 213 N.W. 188;Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883.

Was plaintiff guilty of contributory negligence as a matter of law, under the Indiana law? We quote from the acts of the Indiana General Assembly, as follows:

‘It shall be unlawful for any person to park a motor vehicle or motor-bicycle or to leave any such motor vehicle or motorbicycle, without an attendant, on the traveled portion of any highway outside the corporate limits of any city of town, except in case of emergency.’ 1933 Acts of Indiana General Assembly, c. 90, § 5, pp. 658, 659 (Burns' Ind.Stat.1933, 47-526).

‘It shall be unlawful for any person to park or leave a motor vehicle upon any portion of any highway outside of any city or town between the hours of one-half hour after sunset to one-half hour before sunrise, unless such motor vehicle so parked or left shall display upon the front two (2) lighted white lights, properly dimmed, and one (1) lighted red light on the rear of such motor vehicle.’ 1929 Acts of Ind. General Assembly, c. 190, § 6, p. 616 (section 47-505, Burns' 1933).

‘While any motor vehicle used for the carriage of passengers for hire, or any motor-truck or commercial motor vehicle is stopped on the traveled portion of any highway outside the corporate limits of any city or town, for a purpose other than taking on or discharging passengers or freight, or complying with traffic requirements, the operator thereof shall cause to be displayed in a prominent position above the surface of the highway at a distance of approximately three hundred (300) feet from such vehicle in the direction from which it was coming and also in the direction in which it was proceeding, a brilliant-burning danger or caution signal.’ 1933 Acts of Ind. General Assemly, c. 90, § 5, pp. 658, 659 (Burns' 1933, § 47-526).

The law of Indiana provides under Burns' Annotated Statutes 1933, § 47-516: ‘No person shall drive or operate a motor vehicle or motor-bicycle upon any public highway in this state at a speed greater or less than is reasonable or prudent, having regard to the width of the highway, the density of the traffic, the condition of the weather and the use of the highway, or so as to endanger the life or limb or injure the property of any person.’

Appellant cites, among others, Cleveland, C., C. & St. L. R. Co. v. Gillespie, 96 Ind.App. 535, 173 N.E. 708, and Pennsylvania R. Co. v. Huss, 96 Ind.App. 71, 180 N.E. 919, which he says state the proper rule rather than the later case of Opple v. Ray (Ind.Sup.) 195 N.E. 81, 84.

We believe Opple v. Ray, supra, decided April 9, 1935, is controlling. In that case, defendant's car was parked at night upon a public highway, unattended and without lights. Plaintiff was approaching from the rear and had dimmed his lights to avoid blinding an oncoming driver; he did not see defendant's car until he was about 12 or 15 feet away and could not stop quickly enough to avoid a collision. It was urged that plaintiff was guilty of contributory negligence, because of a violation of the Indiana statute which requires that headlights must be visible 400 or 500 feet and must enable a driver to see an object the size of a man 200 feet in front of his car in the direction in which it is proceeding. We quote from the opinion:

‘The statute in question, section 47-504, Burns' 1933, also provides that the operator of a car shall, when approaching and about to pass a car traveling in the opposite direction, dim or reduce the front lights on his car so that the...