Winslow v. Veterans of Foreign Wars National Home, 78

• Decision Date: 12 September 1950
• Docket Number: No. 78,78
• Citation: 328 Mich. 488,44 N.W.2d 19
• Parties: WINSLOW v. VETERANS OF FOREIGN WARS NATIONAL HOME et al.
• Court: Michigan Supreme Court

Page 19

44 N.W.2d 19

328 Mich. 488

WINSLOW v. VETERANS OF FOREIGN WARS NATIONAL HOME et al.

No. 78.

Supreme Court of Michigan.

Sept. 12, 1950.

Ballard, Jennings, Bishop & Ellsowrth, Lansing, for appellants.

Benjamin F. Watson, Lasing (Frederick C. Newman, Jr., Lansing, of counsel), for appellee.

Before the Entire Bench.

SHARPE, Justice.

This is an appeal from a judgment for plaintiff in an action for damages resulting from a collision between a school bus and a car owned and operated by plaintiff's decedent who died as a result of the collision.

The collision occurred about 8 a.m., of February 12, 1948, on M-188, a state highway and at a point approximately 3 1/2 miles south of Eaton Rapids. Highway M-188 is a north and south road with blacktop surface of a width of 20 feet. The highway in the vicinity of the collision crosses a bridge or culvert. South of the bridge on the west side of the road there is a shoulder which gradually slopes to a gutter. The shoulder is of sufficient width to permit a car to be driven on it completely off the blacktop. On the morning in question there was some snow on the road. There was a heavy fog bank over the bridge which extended 50 feet south of the bridge.

On the morning in question Mark Dillingham, an employee of the Veterans of Foreign Wars National Home, drove a school bus from the home north toward Eaton Rapids. There were 72 children, a supervisor and the driver on the school bus. Upon entering highway M-188, the fog bank in the vicinity of the bridge was visible. The bus proceeded north at a speed of about 15 miles per hour until it came to two motor vehicles also proceeding in a northerly direction. One vehicle was towing the other. The bus driver accelerated his speed to 20 or 25 miles per hour in order to pass the two vehicles. At the point of passing, the bus was about 200 feet south of the bridge. Before the bus driver succeeded in returning to the east side of the highway he saw a car coming from the north. The bus and the south bound car collided. Plaintiff's decedent, Gleeland H. Winslow, was driving the south bound car. He was killed as a result of injuries received in the collision. The vehicles came to rest with the rear end of plaintiff's car approximately in the center of the bridge which was 10 feet from north to south. The bus was headed north and the front of the bus and the car were interlocked. Decedent's car was 10 feet in length and the bus was about 33 feet long. The record also shows that 59 feet south of the front of the bus there was found scraps of metal from both the car and the bus.

Plaintiff, as administratrix of the estate of Gleeland H. Winslow, brought an action against the Veterans of Foreign Wars National Home and Mark Dillingham, the driver of the school bus. The case was tried without the aid of a jury.

At the close of plaintiff's proofs, defendants made a motion to dismiss the cause on the ground that plaintiff's decedent was guilty of contributory negligence in that his car was 2 1/2 feet east of the center of the highway at the time of the collision. The motion was taken under advisement and at the close of all proofs, the court entered a judgment in favor of plaintiff.

Defendants appeal and urge that the failure of plaintiff to show that her decedent was on his proper side of the highway precludes recovery; that it is negligence as a matter of law for an operator of a motor vehicle to drive in a fog along a public highway iat such a speed that it cannot be stopped within the distance that objects could be seen ahead of it.

The trial court found as a fact that plaintiff's decedent was on his proper side of the highway at the time of the collision. In an opinion the court stated: 'After considering all of the testimony relative to the place of the impact and the logical inferences to be drawn therefrom, and, after having seen and heard the witnesses testify, I am of the opinion that the testimony preponderates to the effect that the decedent driver was driving on the west one-half of the blacktop when the collision occurred. But, let us assume that the decedent was driving somewhat over the centerline on the blacktop. In view of where the bus was at the time of the impact, it would have made no difference and such negligence would not have been a contributing factor to the accident.'

As to the speed that decedent was driving, the court found as a fact: 'After considering the physical facts, it does not appear to me that the Chevrolet was being driven at a high rate of speed, rather it appears that it was not being driven too fast for the conditions then and there existing. Further, it appears to me under the circumstances here, that speed, even though excessive, on the part of the decedent driver would not be a contributing factor to the accident.'

We are in accord with the finding of fact of the trial court that the negligence of defendants was clearly shown. The principal question for discussion in this case is the contributory negligence of plaintiff's decedent. We are of the opinion that the evidence presented a question of fact as to decedent's location on the highway at the time of the collision; and that there was sufficient evidence to support the trial court's finding that plaintiff's decedent was on his proper side of the highway.

We note that the trial court did not determine the rate of speed of plaintiff's decedent at the moment of the fatal collision, nor did he determine the exact point of the collision. There is competent evidence that the point of collision was 64 feet south of the south end of the bridge.

Section 256.305 of C.L. 1948, Stat.Ann. § 9.1565, which was in effect at the date of this accident, provides in part: 'Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other condition then...