Ter Haar v. Steele, 72

• Decision Date: 03 April 1951
• Docket Number: No. 72,72
• Parties: TER HAAR v. STEELE.
• Court: Michigan Supreme Court

Page 65

47 N.W.2d 65

330 Mich. 167

TER HAAR v. STEELE.

No. 72.

Supreme Court of Michigan.

April 3, 1951.

Leo W. Hoffman, and Dwight M. Cheever, Allegan, for plaintiff and appellant.

Ballard, Jennings, Bishop & Ellsworth Lansing (Everett R. Trebilcock, Lansing, of counsel), for defendant-appellee.

Before the Entire Bench.

BUTZEL, Justice.

Earl Ter Haar, plaintiff, was seriously injured when the panel truck in which he was riding collided with a truck owned by James Steele, defendant. The case was submitted to a jury who found no cause of action. A motion for a new trial was denied and Ter Haar has taken this appeal.

On October 8, 1948, at about 8:00 o'clock in the evening, after dark, Ter Haar was riding in his truck, driven by Richard Underhill, his employee. The collision occurred about two and one-half miles west of St. Louis, Michigan, while they were driving west on M-46, a two-land highway. They had been working in Hemlock, Michigan, and were returning home to Grand Rapids. Ter Haar was sleeping at the time of the accident. Neither party questions the law that any contributory negligence of Underhill's would be imputable to his employer, the plaintiff.

Underhill testified that as he approached the defendant's truck he noticed that its tail lights were flickering on and off, and that this made him apprehensive. As he came closer he attempted to pass, but did not because of oncoming traffic. Steele's lights then failed completely, and Steele started to drive on to the shoulder of the road. After going a few feet, he stopped partially on the road, and partially on the shoulder, without giving a signal of any kind. Underhill testified that when the defendant's lights went out he had time to stop, and he did apply his brakes, but when the defendant started to drive off the road, he assumed that he would continue off and Underhill released his brakes. When Steele stopped, Underhill attempted to pass, but because of approaching traffic he did not think he could safely do so. He reapplied his brakes but it was too late and he collided with the rear of the defendant's truck. There was some testimony on Underhill's part, during the cross-examination, that might have led the jury to believe that he was following too closely and could not stop in time to avoid the accident.

The defendant's version of the accident differed in this respect. Steele testified that when his lights went out he had difficulty in stopping his truck as he was on a down grade and his truck was loaded. He traveled a considerable distance before he stopped, although he applied his brakes immediately. He also testified that he had come to a complete stop and had waited almost 30 seconds before he was struck.

Steele's testimony was supported by that of the ambulance driver who took Ter Haar and Underhill to the hospital. He testified that Ter Haar asked Underhill what had happened and that Underhill replied that he did not know, that he was drowsy at the time of the accident. Plaintiff and Underhill testified that they did not remember the ambulance trip.

There was additional testimony by Steele, not material to our decision but which might have influenced the jury, to the effect that he had had trouble with his lights, and that he had stopped in Alma, Michigan, where they were apparently repaired. He also testified that when his lights went out he could not see the shoulder of the road and did not know whether it was safe to leave the pavement. The reason he went partially off the road was to allow room for east bound traffic to pass in the event that they did not see him. He was waiting for east bound traffic to pass when he was struck. These were the facts that were submitted to the jury, who decided in the defendant's favor.

Ter Haar's theory is that when Steele started to leave the pavement Underhill had a right to assume that he would continue off the road and that when Steele stopped on the highway Underhill was confronted with a sudden emergency.

There are several claimed errors in the instructions to the jury. The first is that the court incorrectly charged the jury as to the assured clear distance ahead statute ¹, and did not limit the application of the statute to the appropriate factual situations. The court instructed the jury that 'the assured clear distance between moving vehicles * * * proceeding in the same direction cannot be in excess of the actual distance intervening between the leading vehicle and the following vehicle. This applies to moving vehicles only, not a parked one.' The plaintiff contends that this would permit the jury to find that, if the facts were that Underhill was following at 40 feet behind the defendant and could not stop within 40 feet, he would be guilty of negligence. Ter Haar claims that under the above facts he would not necessarily be builty of negligence for the assured clear distance ahead statute does not apply to moving vehicles when the vehicle in front stops suddenly, without warning, and the need to stop is not apparent to the driver of the following vehicle, citing Weaver v. Motor Transit Management Co., 252 Mich. 64, 233 N.W. 178. This instruction was not error. If the plaintiff was following too closely then he was guilty of negligence. The assured clear distance statute applies to moving vehicles, Winslow v. Veterans of Foreign Wars National Home, 328 Mich. 488, 44 N.W.2d 19; Gordon v. Hartwick, 325 Mich. 534, 39 N.W.2d 61, and the assured clear distance can be no greater than to the rear of the first vehicle, Fugere v. Aronson, 285 Mich. 661, 281 N.W. 396. The Weaver Case, supra, does not create an exception to the assured clear distance statute. In that case we held that P.A.1919, No. 236, ² created a rebuttable presumption of negligence only. The assured clear distance statute was not construed.

We find it unnecessary to detail the balance of the appellant's contentions in this regard. The greater part of the charge on the assured clear distance statute was taken from instructions we had already approved in Funk v. Tessin, 275 Mich. 312, 266 N.W. 362; Buchel v. Williams, 273 Mich. 132, 262 N.W. 759; Thompson v. Southern Michigan Transportation Co., 261 Mich. 440, 246 N.W. 174; Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A.L.R. 1528; Gardinear v. Pere Marquette Ry. Co., 265 Mich. 286, 251 N.W. 388; Lett v. Summerfield & Hecht, 239 Mich. 699, 214 N.W. 939; and there is no necessity for a lengthy discussion of the already well considered questions that are raised by the appellant on this subject. A reading of the charge on the assured clear distance statute convinces us that it was a fair statement of the law as it applied to the facts before the jury.

The appellant further contends that the court erred in stating to the jury that one of the questions for its consideration was whether or not the defendant's truck was moving when it was struck. One of the witnesses testified that he did not know whether the truck was moving or not; both parties testified that it was stopped. We fail to see how a jury could be misled by this patent mistake. There was no prejudicial error.

The court, when stating the claims of the parties to the jury, said: 'Now the plaintiff claims, also, that he was faced with a sudden emergency, and I will explain that later on; and that this sudden emergency more or less excuses any negligence that might be attributed to the plaintiff or his driver on account of this accident.' In a later part of his charge, the...