Samuelson v. Olson Transp. Co.
| Decision Date | 11 April 1949 |
| Docket Number | No. 18.,18. |
| Parties | SAMUELSON v. OLSON TRANSP. CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marquette County; Frank A. Bell, judge.
Action by John Samuelson against Olson Transportation Company, a Wisconsin corporation, for personal injuries sustained in an automobile accident. From a judgment for the plaintiff, defendant appeals.
Affirmed.
Before the Entire Bench.
McGinn & Fitzharris, of Escanaba, for plaintiff-appellee.
George C. Quinnell, of Marquette, for defendant-appellant.
This is an action for damages for personal injuries suffered by plaintiff in an automobile accident on January 18, 1947. The accident happened about 10:30 p. m., on M-35 about three and a half miles east of Gwinn in Marquette county, Michigan.
Plaintiff, on the day in question, had been employed at unloading trucks and in the evening rode with his friend Lowell Roberts in Roberts' truck to his employer's camp about 12 miles from Gwinn. They had supper at the camp and later in the evening drove back to Gwinn and from there to Noreen's Gas Station, located about three and a half miles east of Gwinn, arriving there about 10:30 p. m.
On the evening in question the defendant trucking company through its driver Lyle Legare left Green Bay, Wisconsin, with a load of heater oil destined for the Standard Oil Company at Gwinn. The oil weighted 16 or 17 tons, this together with the tank and trailer made a total weight of more than 25 tons. The distance from the front end of the tractor to the rear of the tank was over 30 feet. Traffic on M-35 was light on the night in question. The road was plowed 24 to 26 feet wide with snow banks along each side of the road three to four feet high.
Legare, the driver, had never been over this road before. As he approached the gas station from the east he began to wonder whether he had already gone through Gwinn so he decided to go into the station and find out where he was. In front of the station there is a large lighted Standard Oil sign extending from poles. The station is lighted and the pump is south of the sign. The driveway to the gas station is in the form of a semi-circle. West of the station there appeared to Legare to be a clear spot where he could park his vehicle off the highway. As Legare approached the station he turned his vehicle so as to put it partly on the south side of the highway. The highway west of the station curves to the south so that a person located on the highway at the station can see a vehicle approaching from the west for more than 600 feet.
At this time the truck in which plaintiff was riding was approaching from the west. Roberts, the driver, did not see defendant's oil truck until he was 150 to 200 feet away. Plaintiff could not see the oil truck until he was 150 feet away from the oil truck and could not tell on which side of the road it was or whether it was moving. Plaintiff was not alarmed so he reached for a cigarette and when he looked up he saw that the lights of defendant's oil truck were right in front of him. The lights of the oil truck blinked once or twice and then came the crash.
As a result of the collision plaintiff suffered severe injuries. In October 1947, he began the instant action. The cause came on for trial and at the close of all testimony defendant made a motion for a directed verdict for the reason that defendant's driver was not guilty of negligence and plaintiff was guilty of contributory negligence. The motion was denied. The following special question was submitted to the jury: ‘Did the plaintiff do what a reasonably prudent man would do for his own safety during the last 600 feet of his ride with Roberts just prior to the accident?’ The jury answered it, ‘yes' and returned a verdict for plaintiff in the sum of $25,000. Defendant, thereupon, filed a motion for a new trial which was denied.
Defendant appeals and urges that it was not guilty of any negligence that contributed to plaintiff's injury. There is evidence that the driver of defendant's oil tank entered into the south section of the road with the intention of turning into pribate property. After as doing, he determined that he could not make the turn in that position; and before he could return to his side of the road, the accident occurred. There is evidence that after he got into this position he did everything possible to avoid the accident by flashing his head lights to give warning of his position.
In Ruby v. Buxton, 305 Mich. 64, 8 N.W.2d 913, 915, we said:
Under the circumstances of this case the negligence of defendant presented a factual question upon which the jury has spoken. We find no reason to disturb their finding of fact.
It is also urged that plaintiff was guilty of contributory negligence as a matter of law and defendant relies upon the following statement taken from the dissenting opinion in Mullen v. City of Owosso, 100 Mich. 103, 58 N.W. 663, 664,23 A.L.R. 693, 43 Am.St.Rep. 436:
As well as the following statement approved by this court in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 111, 163 A.L.R. 697:
‘Our holding herein should not be construed as excluding under appropriate circumstances the defense of contributory negligence on the part of the passenger, if relative to the case of the accident the passenger failed to exercise such reasonable care and caution as he should have exercised under the circumstances.
‘The following from 2 Restatement of the Law of Torts, p. 857, § 315, comment (b), is pertinent on this point:
Plaintiff testified:
* * *
Lowell Roberts, the driver of the truck in which plaintiff was a guest passenger, testified:
* * *
It seems apparent that whether Lowell Roberts did what any reasonably prudent man would have done when he applied his brakes and turned to the right as far as he could presents a factual question upon which the trier of the facts should deliberate. It is also a question of fact whether plaintiff should have warned Lowell Roberts of the approaching danger. We cannot say that plaintiff was guilty of contributory negligence as a matter of law. The findings of fact by the jury are supported by competent evidence and are not against the preponderance of evidence.
Defendant urges that a verdict in the amount of $25,000 is excessive. At the time of the injury, plaintiff was 31 years of age and a married man with wife and two children. Prior to the accident, he was in excellent health and a capable workman earning $8 per day. In addition to bumps, bruises and contusions he suffered a laceration on the left side of his face which extended from the temporal area down through the left cheek and into the border of the lip and severed the left facial nerve resulting in permanent paralysis of the muscles of the lower lip making eating difficult and embarrassing. The injury also produced a paralysis of the upper eyelid, the effect of which is that the eye will not blink or shut of its own power. He spent several days in the hospital and incurred expenses of $226.43 for hospital bills and $150 for doctors. He still suffers from headaches and dizziness. During these spells he cannot work. There was some testimony that traumatic epilepsy and mental instability...
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