Nass v. Mossner

• Decision Date: 26 April 1961
• Docket Number: Nos. 2,3,s. 2
• Parties: Robert A. NASS, Plaintiff and Appellant, v. Harvey J. MOSSNER and Emma Mossner, jointly and severally, Defendants and Appellees. Henry W. NASS, Hartford Fire Insurance Company, subrogee of Henry Nass, Plaintiffs and Appellants, v. Harvey J. MOSSNER and Emma Mossner, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 881

108 N.W.2d 881

363 Mich. 128

Robert A. NASS, Plaintiff and Appellant, v. Harvey J. MOSSNER and Emma Mossner, jointly and severally,

Defendants and Appellees.

Henry W. NASS, Hartford Fire Insurance Company, subrogee of

Henry Nass, Plaintiffs and Appellants, v. Harvey J. MOSSNER and Emma Mossner, jointly and severally,

Defendants and Appellees.

Nos. 2, 3.

Supreme Court of Michigan.

April 26, 1961.

Peter F. Cicinelli and Eugene D. Mossner, Saginaw, for plaintiffs and appellants.

Heilman & Purcell, Saginaw, for defendants and appellees.

Before the Entire Bench.

DETHMERS, Chief Justice.

In these two cases, combined for trial and appeal purposes, plaintiffs appeal from a directed verdict for defendants. Plaintiff Robert A. Nass, hereinafter called the plaintiff, was the driver and his father, plaintiff Henry W. Nass, was the owner of an automobile insured by plaintiff insurance company. Suits were for plaintiff's personal injuries and for damages to the father's automobile. Defendants were owners of a tractor and attached farm wagon drawn by it.

Viewing the evidence, as we must (Firemen's Insurance Co. v. Sterling Coal Co., 348 Mich. 564, 83 N.W.2d 319), in the light most favorable to plaintiffs for purposes of this appeal, the pertinent facts are:

On July 25th, at about 8:30 p. m., when it was just dusk, dark enough so that it was necessary for automobiles to have their lights on, plaintiff was driving the automobile delinquent penalty is not paid on or before 50 miles per hour. He had the 'dimmers,' as distinguished from the 'bright' lights, on. He was traveling on his right side of the road, looking straight ahead. The highway had a two-lane, cement pavement, 20 feet in width. Grass grew on the shoulders of the road on each side. Beyond these were fields of growing crops of hay, soy beand, alfalfa, etc. Some distance ahead of plaintiff, on the horizon, trees flanked the highway on either side. The predominant color of all these surroundings, in varying shades, was green. Defendants' tractor and wagon were also traveling north, at a very low rate of speed, in the same lane, directly ahead of plaintiff. The wagon was 8 feet wide, made of old, dark wood which never had been painted, it was covered with dust and dirt and was loaded with baled hay to a height of just under 12 feet. There was no taillight or reflector on the wagon. Plaintiff never saw the wagon or tractor ahead of him at any time, although he was looking straight ahead. He drove the automobile directly into the rear of the wagon. The results were personal injuries to plaintiff and damages to the automobile.

Plaintiffs' declarations alleged that as the plaintiff approached the wagon loaded with hay it so blended into the atmosphere and surrounding terrain as to become camouflaged and completely invisible to him, so that he could not and did not see it until too late to be able to avoid it, although he was looking directly ahead where it was.

In directing a verdict for defendants, the trial court held plaintiff guilty of contributory negligence as a matter of law. It based this holding on the assured-clear-distance-ahead statute*, citing cases to the effect that one who runs an automobile into the rear end of another vehicle plainly to be seen on the road directly ahead of him, violates that statute and is guilty of negligence as a matter of law.

Defendants rely on those and other cases holding a plaintiff to be in violation of the mentioned statute and guilty of contributory negligence as a matter of law in running into the rear of an unlighted vehicle parked on the highway after dark, such as Angstman v. Wilson, 258 Mich. 195, 241 N.W. 909, Lett v. Summerfield & Hecht, 239 Mich. 699, 214 N.W. 939, Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A.L.R. 1528, Spencer v. Taylor, 219 Mich. 110, 188 N.W. 461, Rueger v. Hamling, 355 Mich. 489, 94 N.W.2d 923.

Plaintiffs point to Martin v. J. A. Mercier Co., 255 Mich. 587, 238 N.W. 181, 78 A.L.R. 520, in which this Court held that the question of the negligence of one running an automobile into a large excavation in the highway on a dark, misty morning was one of fact for the jury; Vashaw v. Marquette Public Service Garage, 288 Mich. 363, 284 N.W. 910, in which plaintiff struck a chain stretched across the road at night, this Court holding that the question of whether failure to see chain was negligence was factual for the jury; Bard v. Baker, 283 Mich. 337, 278 N.W. 88, 90, in which plaintiff struck mats protruding from a truck and this Court held that failure to see them presented a question of fact for the jury as to plaintiff's contributory negligence, saying that 'a person should not be guilty of contributory negligence as a matter of law in failing to see an object which was undiscernible to a person approaching the same in the exercise of ordinary care.'; Barner v. Kish, 341 Mich. 501, 67 N.W.2d 693, 695, in which this Court approved an instruction that, 'The rule as to assured clear distance ahead never comes into being until there is a visible object on the road in front of the driver.' (Italics supplied); Rueger v. Hamling, 355 Mich. 489, 94 N.W.2d 923, 926, in which the cross-plaintiff struck a large been combine and this Court distinguished the case from the above Martin, Bard, and Vashaw cases, involving the excavation in the highway, the chain across the road, and the protruding and allegedly undiscernible mats, saying:

'There are no circumstances legally excusing his (cross-plaintiff's) conduct, we are not dealing with a situation involving an obstruction on a highway of such nature that it cannot be seen by a person approaching in the exercise of ordinary care. The accident did not happend because of a highway defect that was not visible except at short range, nor did it result from an obstacle of such size or nature that its presence would not necessarily be discovered by one approaching with due care. Decisions like Martin v. J. A. Mercier Co., 255 Mich. 587, 238 N.W. 181, 78 A.L.R. 520; Bard v. Baker, 283 Mich. 337, 278 N.W. 88; and Vashaw v. Marquette Public Service Garage, 288 Mich. 363, 284 N.W. 910, are not in point.'

The pertinent language of the statute in question is 'assured, clear distance ahead.' We think the above decisions urged by the respective parties and other cases as well, relating to that statute, are consistent even though in some the question of the driver's negligence was held to be a matter of law and in others a question of fact. When the object ahead of the driver and the surrounding conditions were such that, had he exercised due care, he must have seen it, negligence as a matter of law was ascribed to him. When the size or character of the confronting object and attending conditions were such that it might have been ...