Reed v. Ogden

• Court: Michigan Supreme Court
• Writing for the Court: CLARK
• Citation: Reed v. Ogden, 252 Mich. 362, 233 N.W. 345 (Mich. 1930)
• Decision Date: 02 December 1930
• Docket Number: No. 109.,109.
• Parties: REED v. OGDEN & MOFFETT.

252 Mich. 362

233 N.W. 345

REED

v.OGDEN & MOFFETT.

No. 109.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, St. Clair County; William Robertson, Judge.

Action by Roderick H. Reed against Myron E. Ogden and another, copartners doing business as Ogden & Moffett, and amended as Ogden & Moffett, a Michigan corporation. Judgment for plaintiff, and defendants bring error.

Affirmed.

Argued before the Entire Bench.Mason, Alexander & McCaslin, of Grand Rapids, and Stevens T. Mason, of Detroit, for appellant.

Cady & Pepper, of Port Huron, for appellee.

CLARK, J.

Plaintiff suffered personal injuries in a collision of automobiles, on Gratiot road, about fifteen miles southwest of Port Huron, on March 22, 1929, near 9 o'clock at night; the night being dark, foggy, misty, and the pavement wet. He was riding in a car driven by Piggott. A truck, having what is called a semitrailer, owned by defendant, Ogden & Moffett, a corporation, and driven in a northerly direction by its employee Curtis, had stopped because the rear lights (Act No. 318, Public Acts of 1927) on the trailer had gone out, of which Curtis was informed by a device in the cab. The truck occupied its right or the easterly portion of the pavement. Curtis, according to plaintiff's testimony, was engaged between truck and trailer in repairing the lights, and the truck had been stopped several minutes, when James, driving an automobile northerly, approached the truck. He did not see it in time to stop. His application of brakes resulted in his car skidding into the path of the car in which plaintiff was riding, coming from the north, and the collision followed.

Plaintiff's evidence is that at the time James first saw the truck it had no lights on the rear of its trailer. Defendant had testimony that light or lights were then on the rear of the trailer. There is evidence that Curtis had a flash-light, and that a lantern was carried on the truck. Curtis testified that, when he saw James' car approaching, he went behind the trailer and used the flash-light as a warning, which testimony is contradicted by James. Curtis was alone on the truck. A farmer living near the place same a moment after the crash.

The judge, in his charge, recognized the duty of defendant to have proper lights on the truck and its right to stop the truck for the purpose of making necessary repairs (section 1, title 1, Act No. 318, Public Acts of 1927), and he instructed that, if defendant was not ‘otherwise guilty of negligence,’ it was not liable to plaintiff in the action.

Plaintiff began suit against both Ogden & Moffett and James, but, being unable to get service on James, residing in Canada, he proceeded against Ogden & Moffett alone and had verdict and judgment. Defendant brings error.

By motion to direct verdict and for judgment non obstante, which were denied, defendant raised the question that there was no evidence of negligence on its part proximately causing plaintiff's injuries, on which question evidence must be viewed most favorably to plaintiff. So viewed, it appears that Curtis went between the truck and the semitrailer to repair lights, that he was so engaged for several minutes; that the rear end of the trailer was then without lights; that the night was dark, foggy, and misty; that he took no precaution to warn other travelers of the danger; and that he had a lantern and a flash-light, at least one of which might have been used for the purpose.

Granting that, under the facts of the case, Curtis might stop when and where he did to make the necessary repairs to the lights, was he otherwise negligent? Under the facts stated, did he exercise due care?

By use of the means at hand, Curtis could have given warning and taken precaution for the protection of others using the highway. He failed in this regard, according to plaintiff's testimony. It was his duty to use reasonable care, that the truck trailer, so stopped in the highway, did not constitute a source of danger to other users of the highway. 42 C. J. 1007. Reasonable care must be commensurate with obvious conditions, including the fog, mist, and darkness.

The question of whether defendant was negligent in this regard was for the jury.

In Seibert v. A. Goldstein Co., 99 N. J. Law, 200, 122 A. 821, plaintiff's truck ran into the rear of defendant's truck, which was stopped on the highway without proper rear light, at night, and in a violent snowstorm, and, although defendant's driver had an assistant riding with him and the truck had been stopped for...