Clark v. Jackson

Plaintiff seeks recovery for severe injuries suffered as a result of an automobile accident on Larchmont avenue, in the city of Detroit. On trial before the court without a jury plaintiff had judgment and defendant has appealed.

About 6 o'clock in the evening of December 31, 1933, plaintiff was being driven home by one Reed Robson. When 10 or 12 doors from her home the car in which plaintiff was riding in a westerly direction struck the rear portion of the platform of a stake body truck which was parked without lights at the north side of the street. On the night in question there was a drizzly rain and it was quite misty. Robson testified that his headlights were lit, that the beams were tilted down, and he could see 60 to 65 feet ahead — could see a vague outline at 65 feet. His windshield wiper was operating and his brakes were in good condition. When at the intersection of Firwood 'and Larchmont, substantially 125 feet from the point of accident, Robson noticed a car coming toward him down Larchmont. As the car approached him, he gradually turned to the right and as he started to turn, he took his foot off the accelerator and applied his brakes a little. Robson was blinded momentarily by the oncoming lights, and when he regained his vision he saw this truck loom up in front of him. He turned to the left but since the truck was only 8 or 10 feet ahead of him, he could not avoid the impact. Robson did not see the truck before he went into the blind spot. When he first saw the truck, he was traveling about 12 miles an hour, and was going at the same rate of speed when he struck the truck. Testimony produced on behalf of plaintiff, which we accept as true, is to the effect that the front wheels of the parked truck were against the curb but the rear wheels were some distance, perhaps a foot, from the curb. The platform of the truck extended back of the rear axle 54 inches, and this platform was 48 inches above the pavement. There were no stakes or end boards across the back of the body of the truck, although at the front the cab extended upward from its floor. This was a new truck with the cab, wheels and undercarriage painted red, though the body was second hand. The car in which plaintiff was riding struck the rear left hand corner of the platform of the truck. The right side of the automobile was badly damaged but no damage was done to the left side. Robson testified that the point of contact on his car with the truck was at the end of the hood next to the cowl.

The testimony was ample to justify finding negligence on the part of the defendant; and the only question presented for consideration on this appeal is whether Robson, the driver of the car in which plaintiff was riding, was guilty of negligence as a matter of law. If he was, then plaintiff is barred from recovery because Robson's negligence is imputable to her. Lett v.Summerfield Hecht, 239 Mich. 699.

Appellant asserts that Robson was guilty of negligence which contributed as a proximate cause of the accident in that, in violation of the statute (1 Comp. Laws 1929, § 4697, as amended by Act No. 119, Pub. Acts 1933 [Comp. Laws Supp. 1935, § 4697, Stat. Ann. § 9.1565]), he drove his automobile at a speed greater than permitted him to bring it to a stop within the assured clear distance ahead, and also that he did not keep a proper lookout. Plaintiff attempts to bring her case within Bard v. Baker, 283 Mich. 337.

Bard v. Baker, supra, is readily distinguishable from the instant case. In the BardCase the prevailing opinion held that under the disclosed facts the question of contributory negligence was one of fact, not one of law. In that case defendants' truck was loaded with so-called mats made of three layers of two-inch plank. These mats were 14 to 16 feet in length and each weighed between 1,500 and 2,000 pounds. Three of them were loaded crosswise on defendants' truck. The maximum lawful width of such a load is eight feet (1 Comp. Laws 1929, §§ 4728, 4759, as amended by Act No. 253, Pub. Acts 1933 [Stat. Ann. §§ 9.1596, 9.1636]); but this load of mats in width was six to eight feet in excess of the maximum lawful load. Further it was loaded on top of the dump body of the truck which made the bottom of the load at least five feet above the road surface. This projecting load was only 18 inches from the top to the bottom of the mats, thus making only a narrow surface visible to the driver of an approaching vehicle. Defendants' truck, with its headlights burning, was parked on its righthand side of a rural highway, but it was so near the center line of the highway that this 18-inch thick load, five feet or more above the road level, projected across the center line and into the path of the oncoming auto in which Mrs. Bard was riding. The condition created by defendants' unlawful conduct was decidedly unusual, deceptive, and dangerous. It was not discovered by the driver of the Bard car in time to avoid the accident. As bearing upon whether it should be held that such driver was guilty of contributory negligence as a matter of law, it was noted in the prevailing opinion that the statute as to headlights (1 Comp. Laws 1929, § 4738, as amended by Act No. 59, Pub. Acts 1931 [Comp. Laws Supp. 1935, § 4738(b), Stat. Ann. § 9.1606]), provides that "the main bright portion of the beam" shall in no case be higher than 42 inches, 75 feet ahead of the automobile. This was merely noted as being a circumstance accompanying the Bard accident which should be taken into consideration with other disclosed facts in determining whether it should be held as a matter of law that the driver of the Bard car was guilty of contributory negligence. The prevailing opinion in the Bard Case holds that this was a question of fact, not one of law; and the conclusion seems to be well within our holdings in Martin v. J. A.Mercier Co., 255 Mich. 587 (78 A.L.R. 520);Marek v. City of Alpena, 258 Mich. 637; andGarrison v. City of Detroit, 270 Mich. 237.

In the instant case the projection of the truck platform was only such as is common to motor vehicles of this character, not a violation of the law. It was such a vehicle as one might reasonably expect to find parked on a city street and one which could be discerned in the exercise of reasonable care by the driver of an approaching vehicle. The fact that the platform extended substantially four and a half feet back of the rear axle of the truck is not a justifiable explanation of why Robson did not see the parked truck with its cab projecting above the platform in time to have avoided the collision. The projecting platform may have aggravated the result of the accident, but it cannot be said to have been the sole proximate cause thereof. This accident would not have happened except for Robson's careless driving. If he had been careful he would have seen the outlines of the truck and could have avoided the collision.

Plaintiff's case is strikingly similar to that reported inLett v. Summerfield Hecht, supra, where the vehicle in which plaintiff's decedent was riding collided with a lowered endgate on a van which was parked on the highway without lights. In that case we affirmed a directed verdict for defendant. See, also, Cook v. City of Otsego,282 Mich. 248.

It is well-settled in this State that a driver must operate his automobile so that he can stop within the assured clear distance ahead. Lett v. Summer-field Hecht,supra; Haney v. Troost, 242 Mich. 693; andRuth v. Vroom, 245 Mich. 88 (62 A.L.R. 1528). Nor will blindness caused by oncoming headlights excuse one from the operation of the rule. Ruth v. Vroom,supra. Robson should have had his car under such control that he could have stopped when he knew, or should have known, that he could not proceed with safety. He testified that he could see vague outlines at 65 feet. At the rate he was driving and with his range of vision, notwithstanding the hindrance of the "blind spot" for an instant, he must have been able by the exercise of reasonable care to have seen this parked truck either before or after he passed the approaching car and in time to have avoided the accident. Under the holdings of this court Robson, as a matter of law, was guilty of negligence which was a proximate cause of this accident in that he failed to drive his automobile at such a rate of speed that he could stop within the assured clear distance ahead and failed to keep such a lookout as is required by law.

"The driver of an automobile has the duty, not only to keep a lookout ahead and to have his car under control, but also to drive at such speed that he can stop within the range of his vision." Wilkins v. Bradford, 247 Mich. 157.

On the issue of contributory negligence we are not in accord with the conclusion reached by the trial judge. Because the driver of her car was guilty of negligence which is imputable to her, plaintiff cannot recover. The judgment entered in the circuit court is reversed without a new trial. Defendant will have costs of both courts.

WIEST, C.J., and BUSHNELL, SHARPE, and CHANDLER, concurred with NORTH, J.