Patzer v. Bowerman-Halifax Funeral Home, BOWERMAN-HALIFAX

• Decision Date: 01 April 1963
• Docket Number: BOWERMAN-HALIFAX,Nos. 17,s. 17
• Citation: 370 Mich. 350,121 N.W.2d 843
• Parties: Shirley PATZER, Plaintiff and Appellant, v.FUNERAL HOME and Milton Bowerman, jointly and severally, Defendants and Appellees. Perry PATZER and General Accident Fire and Life Assurance Corporation, Ltd., a foreign corporation, Plaintiffs and Appellants, v.FUNERAL HOME and Milton Bowerman, jointly and severally, Defendants and Appellees. ,
• Court: Michigan Supreme Court

Page 843

121 N.W.2d 843

370 Mich. 350

Shirley PATZER, Plaintiff and Appellant, v. BOWERMAN-HALIFAX FUNERAL HOME and Milton Bowerman, jointly and severally, Defendants and Appellees.

Perry PATZER and General Accident Fire and Life Assurance

Corporation, Ltd., a foreign corporation, Plaintiffs and Appellants, v. BOWERMAN-HALIFAX FUNERAL HOME and Milton Bowerman, jointly and severally, Defendants and Appellees.

Nos. 17, April Term, 1963, 18, April Term, 1963.

Supreme Court of Michigan.

June 3, 1963.

Albert Lopatin, Harry T. Ward, Jr., Detroit, for plaintiffs and appellants.

Arthur A. Neiman, Escanaba, for defendants and appellees.

Before the Entire Bench.

BLACK, Justice (for affirmance).

These consolidated suits for negligence bring to consideration anew the assured clear distance rule of motoring conduct. The rule is a creature of statute (P.A.1927, No. 318, Title III, § 5; C.L.S.1956, § 257.627). The antecedents thereof lie with the common law (See cases cited in Lett v. Summerfield & Hecht, 239 Mich. 699 at 702, 214 N.W. 939 at 940). Its application to variant evidentiary circumstances, once visibly to the rigid, ¹ has by force of inexorably developing traffic conditions been modified in recent years to one of 'reasonable construction.' Witness Nass v. Mossner, 363 Mich. 128, 108 N.W.2d 881 and Dismukes v. Michigan Express, Inc., 368 Mich. 197, 204, 118 N.W.2d 238, 241, the later quoting Mr. Justice Smith as follows:

'The statute (assured clear distance) must be reasonably construed. A literal reading thereof would compel us to say that in every case of collision the statute has been violated by the mere fact of collision alone. The driver has either been going too fast, or, if driving at a reasonable speed, has permitted his attention to wander and thus has not perceived the obstruction in time to stop. Such literal interpretation would make the driver an insurer against any collision in which he might become involved. We cannot assume that the legislature intended such a result. The situations under which collisions occur are infinite in complexity and variety, and, to accomplish justice in particular cases, we have been forced to create a number of exceptions to the statutory edict.' (From Sun Oil Co. v. Seamon, 349 Mich. 387, 411, 412, 84 N.W.2d 840.)

This last is in accord with Restatement's comment 'c' under Title A, 'Function of Legislature', § 286, p. 752:

'Many statutes and ordinances are so worded as apparently to express a universally obligatory rule of conduct. Such enactments, however, may in view of their purpose and spirit be properly construed as intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment.' (Restatement of Torts, p. 754.)

The Nass and Dismukes cases, to which Rytkonen v. City of Wakefield, 364 Mich. 86, 111 N.W.2d 63 and Tacie v. White Motor Co., 368 Mich. 521, 118 N.W.2d 479, should be added, definitely bring the assured clear distance rule to qualification by the test of due or ordinary care, exercised in the light of the 'attending conditions.' See Nass at 132 of 363 Mich., at 883 of 108 N.W.2d, Dismukes at 205 of 368 Mich., at 241 of 118 N.W.2d and Tacie at 529 of 368 Mich., at 482 of 118 N.W.2d. Such 'attending conditions' play an important part in application of the rule to these cases of Patzer.

Plaintiffs moved at close of proofs for peremptory instruction that the defendant driver had been shown guilty of causal negligence. They relied and now rely upon on the statutory presumption of negligence arising from a rear end collision (C.L.S.1956, § 257.402) and upon the assured clear distance rule above. The motion was denied and the cases were submitted to the jury. From a verdict and judgment for defendants, plaintiffs appeal.

The case portrays what few except residents of Michigan's northern peninsula know from experience; that winter transforms what is said to be America's most scenic and naturally attractive waterfront drive--M-28 skirting Lake Superior between Munising and Marquette--into a place of constant danger for the motorist who does not know that, when Hiawatha's 'big sea water' manufactures its own blizzard, the safest way to get through the exposed stretches of the way is to wait for and then 'follow the plow' with its high-borne rotating yellow flasher light.

The facts are both extreme and unusual. That our current view thereof must be with due favor to the defendants is of no great importance since there is but little dispute with respect to the weather conditions and causative events. One only of the important facts stands in serious testimonial dispute; whether the Patzer car was stopped, or was proceeding ahead, as defendants' ambulance approached from the rear. That issue must, for present purposes, be resolved as the defendant driver and his assistant testified; that the Patzer car was stopped at the time on the banked and narrowed roadway.

The 'attending conditions' were such--this again is said on favorable view and is not to be taken as standard jury instruction--as to require motoring due care fitted to such conditions rather than to ordinary motoring conditions as contemplated by the assured clear distance statute. The plaintiff driver and the defendant driver, one after the other, entered into the first of several tempest-swept, snowbanked and substantially visionless passageways of M-28 that afternoon in March of 1959. One probably did not know that, when Superior blows by her winter wont directly across the highway where it skirts Murray Bay and Au Train Bay, the weatherwise local motorist usually stays in or heads for less exposed ways. Once he enters such exposed ways, constant risk is his passenger until he emerges at some safe place to stop or turn inland. To stop for want of driving vision or other reason is to invite a collision from the rear. To get out of one's car, the passageway being narrow and the area being a lonely one in winter, is to court personal injury or worse. Requisite vigilance demands that the motorist continue on, fast enough to minimize the danger of collision from the rear and slow enough to minimize the danger of collision with what may loom ahead. In the tone of Restatement, it isn't possible at all times to obey the letter of the enactment requiring an assured clear distance ahead, and still obey the variable and jury-determinable requirement of due care.

The investigating and locally experienced State Police officer described these weather conditions, relating them to the afternoon of the collision, as 'very hazardous.' The trial judge, in his opinion denying motion for new trial, tells about the 'notorious reputation' of M-28 where it skirts Lake Superior in Alger county. ² The assigned county snowplow driver, making steady effort to keep the way between Munising and Christmas (a post office on M-28 some 5 miles west northwest of Munising) clear to pavement width, made 'twelve passes or plows through this area' between noon of the accident day and occurrence of the accident at 3:30 p. m. This work left a 6 foot high bank of snow over which the wind from the lake blew more and more swirling snow into the narrowed way. Such is the factual setting of these appeals by plaintiffs, the bearers of the burden of proof, ³ for ruling that the trial judge should have instructed liability of defendants as a matter of law.

Plaintiffs Perry Patzer and Shirley Patzer, husband and wife, left their Detroit home March 21, 1959 at five o'clock in the morning, bound for Marquette. They reached Munishing about three in the afternoon. Proceeding westward from...