Schneck v. Genesee Cnty. Rd. Comm'n

• Decision Date: 10 December 1940
• Docket Number: No. 3.,3.
• Parties: SCHNECK v. GENESEE COUNTY ROAD COMMISSION et al.
• Court: Michigan Supreme Court

295 Mich. 482

295 N.W. 234

SCHNECK

v.GENESEE COUNTY ROAD COMMISSION et al.

No. 3.

Supreme Court of Michigan.

Dec. 10, 1940.

Action by Jacob Schneck against the Genesee County Road Commission and others for damages allegedly sustained in an automobile accident. From a judgment for defendants notwithstanding a verdict for plaintiff, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Genesee County; Edward D. Black, judge.

Argued before the Entire Bench.

Walter C. Jones & Maurine L. Jones, of Flint, for appellant.

L. J. Carey and Geo. J. Cooper, both of Flint, for appellee Jessie Dowding.

Jack J. Lande, Asst. Pros. Atty., of Flint, for appellee Genesee County Road Commission.

NORTH, Justice.

In this automobile accident case plaintiff, on trial by jury had a verdict; but on defendants' motion the trial court ordered judgment non obstante. This order was based upon the holding that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff has appealed.

On December 8th or 9th, 1936, about 5:30 in the afternoon and when it was dark or growing dark, plaintiff was driving a Ford coupé on a paved highway just outside the village limits of Clio, Michigan. He was driving somewhere from 25 to 30 miles an hour, and the lights on his automobile were lighted. He overtook a truck owned by the Genesee County Road Commission but which at the time was being used by the defendant Dowding Truck & Transfer Company, its employee Mr. Blair being the driver of the truck. The truck was drawing a trailer which had a deck or platform nearly 10 feet in width, 18 to 20 feet long, and was 28 to 30 inches above the pavement level. This platform made of planks was of the natural wood color, about 4 inches thick and bound across the rear by a steel band about 10 inches wide. There were two reflectors attached to this piece of steel, each of which was designed to show a red light by reflection. This trailer was intended for carrying heavy machinery. It moved upon ten wheels, two of which were in front and eight in the rear. It was painted gray, a color close to that of the pavement. There were no side or end pieces used in connection with the platform of the trailer; and at the time of the accident there was being conveyed on this trailer a crane or steam shovel (also called caterpiller truck) which was approximately 12 feet in height and painted red. This crane weighed 10 or 12 tons. The following description was given by a witness: ‘I think a steam shovel was on it (the trailer), a pretty big one; * * *. It was ten or twelve feet tall, about the width of the trailer. Wasn't any over. It couldn't have been any less than two feet narrower than the trailer.’ The pavement, which was dry, was 20 feet in width. There is no claim that any portion of defendants' truck or trailer extended to its left over the center line. There is something of a dispute in the testimony as to whether lights of any character, other than the reflectors, were being maintained on the rear of the trailer. Defendants offered testimony tending to show there were three lighted firepots or flares on the rear end of the vehicle; but on this appeal the testimony must be viewed most favorably to plaintiff. The truck and trailer were proceeding along the highway at the rate of 5 or 6 miles per hour.

The Ford coupe which plaintiff was driving collided with the rear end of defendants' trailer, and resulted in damges to both plaintiff's person and to the automobile. Touching the circumstances of the collision, plaintiff testified:

‘Q. Did you see any lights or warnings ahead of you? A. I didn't see any light.

‘Q. Did you see the trailer before you hit one? A. No; I hit it before I seen it.

‘Q. You didn't see anything? A. I didn't see anything.’

As noted in his brief, appellant is mindful that one driving an automobile must proceed at such a rate that he is able to stop within the assured clear distance ahead. Mason's 1940 Supp.Comp.Laws 1929, § 4697; Stat.Ann. 9.1565. But appellant points out it has been held in a number of our decisions that the stated rule must be applied with reason and it is not applicable to all hazards or obstacles on the highway. In this connection appellant asserts that the instant case should come within our holdings in the particular just above noted in Bishop v. Vandercook, 228 Mich. 299, 200 N.W. 278;Bard v. Baker, 283 Mich. 337, 278 N.W. 88;Park v. Gaudio, 286 Mich. 133, 281 N.W. 565; and Vashaw v. Public Service Garage, 288 Mich. 363, 284 N.W. 910. We are not in accord with appellant's contention. Instead, each of...