Tuttle v. Department of State Highways

• Decision Date: 25 April 1975
• Docket Number: Docket No. 19882,No. 2,2
• Citation: 60 Mich.App. 642,231 N.W.2d 482
• Parties: Joel and Ramona TUTTLE, Plaintiffs-Appellants, v. DEPARTMENT OF STATE HIGHWAYS of the State of Michigan, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 482

231 N.W.2d 482

60 Mich.App. 642

Joel and Ramona TUTTLE, Plaintiffs-Appellants, v. DEPARTMENT OF STATE HIGHWAYS of the State of Michigan Defendant-Appellee.

Docket No. 19882.

Court of Appeals of Michigan, Division No. 2.

April 25, 1975.

Released for Publication July 24, 1975.

Leave to Appeal Granted Aug. 19, 1975.

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

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

Before BASHARA, P.J., and R. B. BURNS and KELLY, JJ.

KELLY, Judge.

This automobile accident occurred at a controlled intersection in Kalamazoo County. Plaintiff-husband was severely injured after collision with another motor vehicle. The auto negligence aspect of the case was disposed of and then suit was brought against the State Highway Department in the Court of Claims. After trial on the merits the trial court entered judgment of no cause for action in favor of the defendant and this appeal was taken by the plaintiffs.

At about 6 p.m. on November 29, 1970, the plaintiff-husband's Volkswagen Van was traveling east on M--43 at 40 mph toward a newly opened section of Sprinkle Road, a five-lane north/south county road. Loretta Lowe was driving a 1965 Chevrolet Station Wagon south on Sprinkle toward the intersection at approximately the same speed. Although it was dark and had been misting, each driver testified there were no visibility problems. Mrs. Lowe had her headlights on but failed to see a stop sign commanding southbound traffic on Sprinkle to stop at its intersection with M--43. She failed to stop or even decelerate at the intersection and collided with plaintiff vehicle, causing injuries to plaintiff-husband.

In separate proceedings plaintiffs instituted action against the Kalamazoo County Road Commission and the Department of State Highways, claiming that the defendants were negligent in not providing greater signalization (full traffic light or flashing-red-amber light) at the intersection at the time of the accident. The Kalamazoo County Road Commission, according to plaintiffs' brief, settled with plaintiffs after trial of the instant case in the Court of Claims.

On appeal, the claim of plaintiffs is three-fold: (A), The trial judge's findings of fact do not comply with GCR 1963, 517.1; (B), The judge's opinion makes legally and factually erroneous findings which led to the decision; and, (C), The decision is against the great weight of the evidence.

A

GCR 1963, 517.1 provides:

'In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in sub-rule 504.2. Requests for findings are not necessary for purposes of review. No exception need be taken to any finding or decision. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.'

We believe the trial court's three-page opinion does comply with the rule. There is little elaboration and no recitation of the evidence most favorable to plaintiffs, but the mandate of the rule is satisfied. We hold that sufficient findings and conclusions appear therein. ¹

B & C

We treat plaintiffs' second and third claims of error together. The findings of the court and the weight of the evidence are inextricably interwoven.

This controversy revolves around the circumstances of the construction, opening and signing of a particular stretch of Sprinkle Road. Sprinkle Road is a five-lane highway 60 feet wide. The center lane is a left turn lane. It was built in sections moving northerly. The portion south of Main Street was completed by 1968 and opened for vehicular traffic. The extension north of Main Street up to G Avenue, passing M--43, was constructed and completed by November, 1970. On November 19, 1970, the extension of Sprinkle Road to G Avenue was opened for public use. The accident occurred only ten days after the opening of this section for public travel.

In order to have the northern section opened, the Kalamazoo County Road Commission was required to obtain a permit from the defendant. The application for permit contained a request for 'installation of an overhead two-way flashing stop (12') on Sprinkle, with flashing yellow on M--43'. This portion of the application was stricken by the State Highway Department. Herein lies the crux of this controversy. Plaintiffs' position, supported by testimony of the engineers of the Kalamazoo County Road Commission, was that the stop sign at the intersection in question was inadequate; there should have been a flashing red signal. It was the State Highway Department's position that proper planning required an actual traffic count after the road was opened to determine the feasibility of signals or other signing. This position was of course supported by the testimony of the defendant's engineers and employees.

Extensive evidence was offered relative to: determination and posting of speed limits, traffic counts, traffic control devices, and various other factors bearing on the issue of safe and reasonable design, construction, and maintenance of Sprinkle Road at and approaching the intersection of M--43.

Plaintiffs urge that Mrs. Lowe should have been provided the benefit of a flashing-red-signal light; that the more readily visible flashing signal would have been seen and obeyed. They allege that the defendant was negligent in failing to provide such a signal because it had been requested by the county before the opening date. The state's witnesses testified it was policy to require a study, including traffic count, before authorizing a signal and the study was conducted at M--43 and Sprinkle November 24th or 25th, just a few days before the accident. As a result of the study, signalization was in fact recommended and installed but not before plaintiff's accident.

The trial court's opinion cites the Michigan Manual of Uniform Traffic Control Devices (1963 ed.), M.C.L.A. § 257.608; M.S.A. § 9.2308, which was heavily relied on by defendant at trial. Plaintiffs concede that the signing was in accordance with the manual. That is, the distance from the edge of the road, the size, reflectorization, etc. of the stop-ahead signs and the stop signs, as well as their installation were in accordance with the manual. Plaintiffs urge that following the manual does not necessarily satisfy the legan duty to maintain the highways in a condition reasonably safe and fit for travel. Carver v. Detroit and Saline Plank Road Company, 61 Mich. 584, 28 N.W. 721 (1886), Kowalczyk v. Bailey, 379 Mich. 568, 153 N.W.2d 660 (1967).

We readily agree. However, we find that the trial court met the standard of Fraley v. City of Flint, 54 Mich.App. 570, 221 N.W.2d 394 (1974), and did not allow the defendant to use Manual standards as a shield for failure to meet the 'reasonableness' test.

The trial testimony thoroughly covered the decision-making process of the county engineers as well as the State authorities. They often did not agree--but even the plaintiffs' expert, Mr. Michalski, testified that the State's position was not unreasonable, given the highway department's policies. He also testified that signalizing should generally await opening,...