Wolfgram v. Valko

• Decision Date: 10 May 1965
• Docket Number: O,No. 55,55
• Parties: Duma Alice WOLFGRAM, Administratrix of the Estate of Floyd Wolfgram, deceased, Plaintiff and Appellant, v. Leo T. VALKO and Richard L. Reid, jointly and severally, Defendants and Appellees. ct. Term 1964.
• Court: Michigan Supreme Court

Page 649

134 N.W.2d 649

375 Mich. 421

Duma Alice WOLFGRAM, Administratrix of the Estate of Floyd Wolfgram, deceased, Plaintiff and Appellant, v. Leo T. VALKO and Richard L. Reid, jointly and severally Defendants and Appellees.

No. 55, Oct. Term 1964.

Supreme Court of Michigan.

May 10, 1965.

Albert Lopatin, Detroit, for plaintiff and appellant; Norman L. Zemke, Detroit, of counsel.

Howlett, Hartman & Beier, Pontiac, for defendant and appellee, Leo T. Valko.

Ward, Plunkett, Cooney, Rutt & Peacock, by David J. Watters, Jr., and Charles T. McGorisk, Detroit, for defendant and appellee, Richard L. Reid.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff appeals from verdict for defendant Reid, directed by the court at the close of plaintiff's opening statement, and verdict for defendant Valko, directed at the conclusion of plaintiff's proofs. The suit is for damages resulting from the wrongful death of plaintiff's decedent allegedly caused by the negligent operation of motor vehicles by the defendants.

Viewed in the light most favorable to plaintiff, on December 10, 1961, her decedent was driving his automobile south in the westerly lane of a 2-lane, north and south highway, at about 2:30 a.m. of a dark night, without headlights on. Defendant Reid was driving north in the easterly lane at a speed of about 35 miles per hour. Defendant Valko was driving his car following Reid and undertook to pass him. When Valko's car was about alongside that of Reid, he saw, in the light from his own headlights, the reflection of decedent's unlighted approaching car. A collision ensued shortly, involving all 3 cars. Decedent was killed.

Plaintiff's theory, as expressed in her counsel's opening statement, was that one of the proximate causes of the collision was the negligence of defendant Reid, after he saw or should have seen the imminence of a collision between decedent's and Valko's cars, in failing to speed up, or slow down, or sound his born, or blink his lights, or drive off onto the right shoulder of the road and thus do whatever he could to allow Valko to get back on his own side of the road and to prevent the accident. At the conclusion of plaintiff's opening statement the court granted defendant Reid's motion for directed verdict on the ground that no legal duty had reposed on him to do any of the things mentioned by plaintiff's counsel as having been means available to Reid to prevent the accident. Reference was made to the provision of the statute (C.L.S.1961, § 257.636 [Stat.Ann.1960 Rev. § 9.2336]) that the driver of an overtaken vehicle shall not accelerate until completely passed by the overtaking vehicle and it was stressed by defendant that the statute does not require decelerating. Plaintiff urged, however, that, despite no such statutory requirement, a common-law duty rested on Reid to do what a reasonably prudent and careful driver would have done under like circumstances to avert the accident, and that the question of whether he had done so or not and whether any failure in that regard was a proximate cause of the accident was one of fact for the jury, prohibiting a directed verdict by the court.

As for defendant Valko, the court directed a verdict in his favor on the ground of decedent's contributory negligence in travelling in the dark of night without lighted headlights contrary to statute (C.L.S.1961, §§ 257.684, 257.685 [Stat.Ann.1961 Cum.Supp. § 9.2384, Stat.Ann.1960 Rev. § 9.2385]). To this, plaintiff says that a jury question was presented as to whether the lack of those lights had been a proximate cause of the accident. In this connection, plaintiff introduced some proofs as to the existence in that locale of certain street lights and the distance at which an unlighted automobile could or should have been seen by defendants prior to the collision.

For her position that a jury question of fact was presented as to whether decedent's negligence was a proximate cause, plaintiff cites Beebe v. Hannett, 224 Mich. 88, 194 N.W. 542, Gleason v. Lowe, 232 Mich. 300, 205 N.W. 199, and Cookson v. Humphrey, 355 Mich. 296, 93 N.W.2d 903. They do not support it. In Beebe plaintiff had but one headlight lighted, the left one, contrary to statute. Plaintiff testified that he was driving on his extreme right side of the road before the collision. Defendant testified that he saw plaintiff's car coming but did not know whether it was an automobile or a motorcycle, but that he drove to his right side of the road before the collision. They struck head-on. Under such circumstances, the fact that each party testified that he was over on his own side, in which case the collision could not have occurred, and the further fact that defendant saw plaintiff's vehicle approaching and that its left headlight was on, making it imperative for defendant to be far enough over to his right to avoid striking such light regardless of whether it was on an automobile or a motorcycle, gave rise to a question of fact whether the collision would not have occurred if plaintiff's right headlight had been on. In Gleason defendant's automobile struck the rear of plaintiff's unlighted lumber wagon travelling in the same direction. The statute involved required a light to be on the left rear of such vehicle as plaintiff's during the hours from 1 hour after sunset until 1 hour before sunrise. The was dispute in the proofs as to whether the collision occurred more or less than 1 hour after sunset and as to whether it was dark. Naturally, this gave rise to a question of fact as to whether the statute had been violated and whether it was then dark enough so that absence of a taillight contributed to the accident. In Cookson plaintiff was driving a motorcycle, after dark, with a headlight which did not comply with statutory requirements as to how far it illuminated objects ahead of it at the speed he was travelling. Defendant's truck was coming from plaintiff's left, approaching the intersection at which the collision occurred. This Court held plaintiff guilty of negligence as a matter of law for failure to comply with the statutory headlight requirement. We held the question of whether it had been a proximate cause of the collision to be one of fact because even a headlight of the strength required by statute for throwing a ray of light straight ahead might not have revealed defendant's truck coming from the left soon enough to have enabled plaintiff to avoid the accident. The instant case is distinguishable from the 3 cited cases in controlling respects. Here defendants did not, as in Beebe, have the benefit of even one lighted headlight on decedent's car and know of his approach. Here there was not, as in Gleason, a question of fact as to whether it was dark enough so that the absence of lights on the vehicle would have made any difference. Here, a distinguished from Cookson, the important, pertinent part that lighted headlights on decedent's car would have played, insofar as his contributory negligence is concerned, was not to enable the driver (decedent) to see a proper distance ahead but, rather, to make decedent's approaching automobile visible to defendants. Had the headlights been lighted on decedent's car, certainly defendants could have seen it. Whether defendants could have seen it even without those lights is not controlling of the contributory negligence question, but goes only to the question of whether defendants were guilty of negligence which was a proximate cause. To bar recovery it is not necessary that decedent's contributory negligence was the sole proximate cause. That the lack of lights on his car made it more difficult for the defendants to see it is self-evident and certainly contributed to their failure to see it in time to avoid the accident. We hold, therefore, that, as a matter of law, decedent's negligence was a proximate cause of his injuries, barring plaintiff's right to recover. It follows that, for whatever reason granted both defendants were entitled to directed verdicts in their favor.

Affirmed. Costs to defendants.

KELLY and O'HARA, JJ., concurred with DETHMERS, J.

SMITH, J., concurred in result.

SOURIS, Justice.

It is the settled law of this State that a plaintiff in a negligence action who has violated a statutory rule of the road is not barred thereby from recovery unless his violation of the statute was a proximate cause of his injury. Arvo v. Delta Hardware Co. (1925), 231 Mich. 488, 204 N.W. 134. It is equally settled law that such issue of contributory negligence presents the following questions of fact to be determined by the triers of fact, 1) whether plaintiff did or did not violate an applicable statute, and, if he did, 2) whether plaintiff's violation of the statute was indeed a proximate cause of his injury. Brown v. Tanner (1937), 281 Mich. 150, 274 N.W. 744, and Thompson v. Llewellyn (1964), 372 Mich. 588, 592, 127 N.W.2d 380.

In this case of Wolfgram, there was introduced testimony that immediately prior to the collision plaintiff's decedent was driving his automobile after dark without its headlights operating, in violation of C.L.S.1961, §§ 257.684, 257.685 (Stat.Ann.1961 Cum.Supp. § 9.2384, Stat.Ann.1960 Rev. § 9.2385). Plaintiff introduced proof of the location, and effective area of illumination, of certain street lights in the vicinity of the accident scene, from which, if believed it could be inferred that the absence of operating headlights on decedents vehicle was not a proximate cause of the collision.

In such circumstances, it should have been left to the jury to determine whether decedent did in fact violate the statute and, if so, whether such violation was a proximate cause of the collision with defendant Valko. Vukich v. City of Detroit (1947), 318 Mich. 515, 28 N.W.2d 894; Tacie v. White Motor Company (1962), 368 Mich. 521, 118 N.W.2d 479; and Schian v. Bierlein (1963), 369 Mich. 219, 119 N.W.2d 611. Thus the trial judge, who properly eschewed making...