Tuttle v. Department of State Highways

Decision Date08 July 1976
Docket NumberNo. 17,17
Citation243 N.W.2d 244,397 Mich. 44
PartiesJoel TUTTLE and Ramona Tuttle, Plaintiffs-Appellants, v. DEPARTMENT OF STATE HIGHWAYS of the State of Michigan, Defendant-Appellee.
CourtMichigan Supreme Court

Bauckham, Reed, Lang & Schaefer by Richard L. Lang, Kalamazoo, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Louis J. Caruso, Asst. Atty. Gen., George J. Platsis, Special Asst. Atty. Gen., Lansing, for defendant-appellee.

FITZGERALD, Justice.

Plaintiff Joel Tuttle suffered severe injuries in an intersectional collision with a vehicle driven by Loretta Lowe on November 29, 1970. Thereafter, plaintiffs, husband and wife, brought this action in the Court of Claims alleging negligent construction, opening and signing of the intersection by defendant Department of State Highways. It was plaintiffs' contention that the newly-opened intersection, which was under defendant's jurisdiction, was not 'reasonably safe and fit for travel' 1 by reason of inadequate signalization. The Court of Claims found that defendant was not negligent and entered a judgment of no cause of action against plaintiffs. The judgment was affirmed by the Court of Appeals which, at 60 Mich.App. 642, 647--648, 231 N.W.2d 482, 485 (1975), took an unduly restrictive view of its reviewing function in this non-jury case:

'In order for us to accept plaintiff's premise (that the trial court's finding of no negligence was against the great weight of the evidence) we would have to substitute our judgment for that of the trial court. This we may not do.'

We reverse the Court of Appeals and the trial court, remanding to the Court of Claims for a determination as to damages. Under GCR 1963, 517.1, an appellate court will set aside the findings of fact of a trial court sitting without a jury when such findings are clearly erroneous. In construing comparable 'clearly erroneous' language in Rule 52(a) of the Federal Rules of Civil Procedure, the United States Supreme Court has stated that '(a) finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' 2 After a review of the entire record of this case, we are left with such a definite and firm conviction. Appropriately, the 'judicial sieve' with which we have sifted the evidence in this non-jury case is 'of finer mesh than the one correspondingly employed here on review' of a jury's verdict. 3

The collision occurred at approximately 6 p.m. on November 29, 1970 at the intersection of M--43 (Gull road) and Sprinkle road in Comstock Township, Kalamazoo County, Michigan. Central to the resolution of this case are the circumstances surrounding the construction, opening and signing of this intersecting stretch of Sprinkle road. Sprinkle road is a 5-lane, semi-limited access arterial road running north from highway I--94, east of the City of Kalamazoo. The first section between I--94 and East Main street was opened for travel in 1968 by the County Road Commission. Prior to its opening, traffic signals were installed at all 5 major intersections on Sprinkle, and speed limits were set at 55 miles per hour.

In 1969 and 1970, Sprinkle road was extended north from Main street across highway M--43 to G Avenue. It was this intersection that was opened on November 19, 1970, some ten days prior to the Tuttle-Lowe collision. The 5-lane road was 60 feet in width, had a curve design speed of 70 miles per hour, and like its southern portion had day-night speed limits of 55 miles per hour. Banked curves approximately 300 feet to 500 feet north and south of M--43 were designed to provide a right angle intersection with M--43 which is a 2-lane, state trunkline, 55-mile-per hour highway running northeast out of the City of Kalamazoo.

Because of the high approach speeds, the existing signalization on the southern portion of Sprinkle road, the width and curves of the road, and because of the anticipated high volume (8,000 to 10,000 vehicles per day) using Sprinkle across M--43, the Kalamazoo County Road Commission requested more than a year in advance of the opening that defendant consider signalization of the intersection. The county had made its traffic volume estimate based on known traffic counts on M--43, on nearby roads parallel to Sprinkle, and on the southern portion of Sprinkle. The intersection was, however, under defendant's jurisdiction by virtue of the fact that M--43 is a state trunkline highway. In an October 30, 1969 letter to defendant's district traffic and safety engineer, the County Road Commission requested as follows:

'In the construction of the new Sprinkle Road extension (East Main to G Avenue), scheduled for the spring of 1970, the Commission feels that the above reference intersection be brought to your attention and consideration given by your department to the following:

'1. That a signalized intersection be established at the corner of Gull Road and Sprinkle Road to control the anticipated high traffic volume.

'2. That turning lanes be established on Gull Road in conjunction with our construction to facilitate traffic flow.'

The request for a signal was denied by defendant pending a study of the actual volume of traffic which would use the new intersection.

In February of 1970, more than nine months prior to the opening, the County Road Commission submitted a written application to defendant '(t)o construct an at-grade intersection with existing M--43 with turning lanes as illustrated on the attached plans. This will also include installation of an overhead 2-way flashing stop (12 ) on Sprinkle with flashing yellow on M--43.' This application was received by defendant, marked approved, except that the sentence referring to the flashing beacon was stricken, and thereafter returned to the county. Having received the county's requests for a full signal and thereafter for a flashing beacon, defendant did not at any time request in return that the county justify its concern for the safety of the intersection.

On November 9, 1970, defendant ordered traffic counts to be made at the intersection after opening. These were made on November 24 and 25, and prompted the following memorandum from the supervising engineer of defendant's electrical service unit:

'The attached signal warrant graph was completed from the manual portion of the survey which was recently received. The twenty-four hour machine counts are not yet available. It appears from a review of the graph that the standard rural signal warrant will be exceeded in a few months since Sprinkle Road now meets the warrant for at least six of the required eight hours and has been open to traffic for only a short length of time.

'As a result, we are approving the installation of traffic signal at the subject intersection. Since approaching traffic speeds on M--43 (Gull) generally exceed forty miles per hour and since Sprinkle Road also exhibits high approach speeds and is five lanes wide, we are recommending that oversize signals be installed. Since a new traffic signal is already scheduled for M--43 (Gull) and Nazareth, located about three quarters of a mile west of the subject intersection, interconnection will be required.'

Meanwhile, the intersection had been opened with but one 36-inch reflectorized Stop Ahead sign and one 36-inch reflectorized Stop sign on each approach on Sprinkle road to the intersection. Defendant's traffic and safety engineer testified that approximately one day after opening he began receiving reports of people not stopping and that he therefore drove the intersection at night. Upon inspection, he became concerned as to the noticeability of the signs, and ordered installation of large black and white cross-hatch backboards to be attached behind each Stop Ahead sign. He also ordered the installation of intersection symbol and name signs on highway M--43. This work order was to be completed by November 27, 1970. All evidence indicates that it was not so completed on November 29, the date of the accident.

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