Van Wormer v. Kramer Bros. Freight Lines, Inc.

• Decision Date: 04 April 1938
• Docket Number: No. 21.,21.
• Citation: 278 N.W. 770,284 Mich. 76
• Parties: VAN WORMER v. KRAMER BROS. FREIGHT LINES, Inc., et al.
• Court: Michigan Supreme Court

284 Mich. 76

278 N.W. 770

VAN WORMER

v.KRAMER BROS. FREIGHT LINES, Inc., et al.

No. 21.

Supreme Court of Michigan.

April 4, 1938.

Action by Maurice C. Van Wormer against Kramer Bros. Freight Lines, Inc., and another, for personal injuries resulting from collision between motor vehicles on public highway. From a judgment in favor of the defendants notwithstanding the verdict, the plaintiff appeals.

Judgment reversed, and cause remanded for entry of judgment on verdict rendered for plaintiff.

POTTER, J., WIEST, C. J., and SHARPE, J., dissenting.

Appeal from Circuit Court, Monroe County; Clayton C. Golden, judge.

Argued before the Entire Bench.

Walter M. Nelson, of Detroit, for appellant.

Edward N. Barnard, of Detroit, for appellees.

CHANDLER, Justice.

I believe that the case of Haszczyn v. Detroit Creamery Co., 281 Mich. 467, 275 N.W. 211, 212, controls the present controversy. In that case 1 Comp.Laws 1929, § 4056, was under consideration, and it was held that the violation of the statutory provision did not bar plaintiff's recovery unless such negligence was the proximate cause of the accident, and that in view of the perfectly apparent conditions in the street, defendant was liable for heedlessly and negligently causing plaintiff's injuries. The following language from that case is appropriate to the present situation.

‘The height of defendant's truck was nine feet four and a half inches, and at the point which contacted the rope the height was about two inches less. It is defendant's contention that the proximate cause of plaintiff's injury was the stretchingof the rope under plaintiff's direction across the street in violation of the above quoted statute. If there were no qualifying circumstances disclosed by the testimony, defendant's contention that violation of the statutory provision was negligence per se on the part of plaintiff and a bar to recovery would be sound. But that result does not follow unless such negligence was the proximate cause of the accident. Arvo v. Delta Hardware Co., 231 Mich. 488, 204 N.W. 134;Cothran v. Benjamin Cleenewerck & Son, 235 Mich. 351, 209 N.W. 132. Under this record it cannot be said as a matter of law that such negligence was a proximate cause of plaintiff's injury.

‘Employees whose work requires them to be in or upon public streets and also requires obstructions in or about such streets which otherwise would be in violation of law are not thereby necessarily guilty of negligence in performing their work. But such employees must take reasonable precaution and use reasonable means to guard against possible injury resulting from such unusual conditions. In the instant case it was clearly a question of fact as to whether plaintiff complied with this requirement. If he did, then placing the rope across the street was not in law a proximate cause of this accident, otherwise it was a proximate cause.’

In the instant case, as in Haszczyn v. Detroit Creamery Co., supra, the work being carried on was work incident to keeping the public highways of the state in a condition of safety and convenience for public travel. It was necessary that this work should be done in and upon the public highways. Under the circumstances disclosed by this record the court cannot say as a matter of law that neither the plaintiff nor his employer had the right to use such tools, equipment, and materials as were customary and required in such repair or construction work, and to move the same where necessary on that part of the road under construction. True, plaintiff was bound to use reasonable care for his own safety. His employer was bound to use reasonable care for the sefety of his employees and any one else who was lawfully on said highway. Timely and ample warning was given defendants and all others who might desire to use this highway that it was undergoing repair and construction work. It is apparent that the wire reinforcing mesh was being transported in the usual and customary way. Under the circumstances, an issue of fact was fairly presented as to whether the unlawful width of the mesh contributed to the accident or whether the unreasonable rate of speed of defendants' truck, or the failure of the driver to go seasonably on the shoulder of the road when he had a clear view of the tractor, trailer, and load of mesh for 200 feet, constituted the sole cause of plaintiff's injuries.

Reversed and remanded for entry of judgment on the verdict rendered, with costs to plaintiff.

BUTZEL, BUSHNELL, NORTH, and McALLISTER, JJ., concurred with CHANDLER, J.

POTTER, Justice (dissenting).

Plaintiff sued defendants to recover damages claimed to have been suffered from personal injuries resulting from a collision between motor vehicles on the public highway. From judgment for defendants, plaintiff appeals.

In 1935, the state authorized R. D. Baker Company, a road contractor, to construct a 10-foot paved strip on the west side of the pavement on Telegraph road which runs north and south, and is a federal and state trunk line, and to replace broken and damaged sections of the old paving. The construction job was about 11 miles long. The west shoulder of the highway was soft and rough, but the east shoulder was in fair condition for travel around the newly repaired sections to a width of about 10 feet. Signs indicated the road was under construction and limited speed of trucks to 15 miles an hour. The accident occurred September 23, 1935. There had been no legal action closing the highway or otherwise regulating the speed of motor vehicles thereon. Defendants' truck was legally upon the highway. Truck traffic was allowed thereon, though passenger cars were rerouted. The road at the point of accident was level and straight. The collision occurred in broad daylight shortly after noon.

On the morning of the day in question, plaintiff was instructed to go with Lowe and Phillips, who was the driver of a tractor, to collect wire mesh that had been distributed along the new strip of pavement north of Erie, Monroe county, which had not been used, and to deliver the mesh for use in the repair of sections of the old pavement. The parties drove to the northerly limit of the construction job and, coming south, loaded the wire mesh on a flat trailer attached to the tractor. This wire mesh was 9 1/2 by 13 feet, and a pile of 25 pieces stood up 2 1/2 or 3 feet above the bed of the trailer. Phillips drove the tractor. Lowe and plaintiff loaded the mesh and rode on top thereof when the vehicle was in motion, Phillips helping occasionally with the work of loading. The tractor and trailer stood on the shoulder east of a barricaded patch, facing south, when the men unloaded, and just before the accident the tractor and trailer were in that position opposite the barricaded repair patch on the highway. There was another repair patch 250 feet south which plaintiff testified was barricaded, though defendant Gapske denied it. Phillips started up the Baker tractor and flat trailer and headed southwest. He testified: ‘My truck was approximately right in the middle of the pavement in the middle 10-foot strip. * * * all the wheels of the semi-trailer were on the pavement at that time.’

Plaintiff claimed the Baker tractor and trailer were traveling 8 to 10 miles an hour, and had gone but a few feet as the time of the collision. He claimed defendants' tractor and semitrailer were going 30 miles an hour. The mesh, loaded upon the trailer upon which plaintiff was riding, as it passed defendants' trailer, caught the rearview mirror bracket of defendants' vehicle and five mats of mesh were pulled to the ground and plaintiff injured. Defendants' truck stopped 30 to 35 feet from the place of collision.

The driver of defendants' tractor and semitrailer saw plaintiff's tractor and trailer when three-quarters of a mile away. He saw the mesh hanging over the edge of the load when approximately 200 feet away. He turned off to the right on the shoulder of the highway, his left wheels being on the east edge of the east strip of pavement. Plaintiff received serious injuries.

At the close of plaintiff's proof, defendants moved for a directed verdict of no cause of action on the grounds no negligence was shown on the part of defendant Gapske and plaintiff was guilty of contributory negligence as a matter of law in loading the wire mesh 9 1/2 feet in width on his employer's trailer when he had knowledge the trailer was to be driven and moved on the public highway. The court reserved decision on this motion and it was renewed at the close of all the proof. The court took the motion under advisement under the Empson Act, submitted the case to the jury, which returned a verdict of $5,000 for plaintiff, and, after argument, defendants' motion for judgment notwithstanding verdict was granted on the ground plaintiff did not show actionable negligence on the part of defendants by a preponderance of the evidence, and did not show he was free from contributory negligence. Plaintiff appeals on the ground the trial court erred in rulling plaintiff did not establish defendants' actionable negligence and absence of contributory negligence on his part.

The width of the load on plaintiff's trailer was conceded to have been 9 1/2 feet. The statutes provide:

‘No vehicle shall excees a total outside width, including any load thereon, of ninety-six (96) inches, excepting that the width of a farm tractor shall not exceed nine (9) feet, and excepting further, that the limitations as to size of vehicles stated in this section shall not apply to implements of husbandry temporarily propelled or moved upon the public highway.’ 1 Comp.Laws 1929, § 4728(a).

‘It shall be unlawful and constitute a misdemeanor for any person to violate any of the provisions of this act unless such violation is by this act or other law of this state declared to be a felony.’ 1 Comp.Laws 1929, § 4745(a).

The wire mesh was piled uniformly on the truck, overhanging on either side.

Pla...