242 N.W. 231 | Mich. | 1932
This action was brought to recover damages for injuries resulting in the death of Fred M. Boylon, the plaintiff's decedent, who was *6 killed when an automobile in which he was riding crashed into a truck standing across the road on M-16 at a curve two miles west of Portland. The automobile belonged to Mr. Boylon and was being driven by his son, Tom. The time of the accident was about six o'clock in the morning of February 27, 1930. It was dark. Mr. Campbell, a friend of the Boylons, was riding with them. They left Grand Rapids about five o'clock in the morning, intending to go to Detroit. The plaintiff says it was not raining or misting, and that the pavement was dry until they reached the point where the collision occurred; that the lights of the car were full on showing a distance of 200 feet ahead; that after they had traveled about 40 miles and were rounding a curve at a speed of 35 miles an hour, they saw the defendant's truck standing across the road about 100 or 125 feet away; that the driver applied his brakes and would have been able to avoid the collision had it not been for a strip of undiscernible ice close by where the truck was standing; that when the automobile hit this ice it skidded into the rear end of the truck despite the efforts of the driver to control it. As a result of the impact, the three occupants of the car were thrown out and both of the Boylons were killed. It is the claim of the plaintiff that her decedent was free from negligence, and that the proximate cause of the accident was the negligence of the defendant in leaving the truck standing unlighted across the highway.
The defendant denies that it was negligent, and claims from the evidence presented by the plaintiff that her decedent was guilty of contributory negligence as a matter of law. On this ground, and that there was no evidence of its negligence, the defendant moved for a directed verdict at the close of the proofs. The motion was granted, and a judgment *7 entered in favor of the defendant. The plaintiff has appealed.
In considering the question of contributory negligence, the condition of the road from Grand Rapids to the place of the accident is important, because it bears on the care which the driver of the automobile should have used in approaching the truck. On that question the evidence is very conflicting, but there is no dispute about the existence of a strip of ice at the point of collision. As the court's ruling on the motion for a directed verdict assumes the truth of the plaintiff's testimony, we take it as a fact that the pavement from Grand Rapids to the place of the accident was dry, and that the driver of the automobile had no reason to expect ice anywhere on the road; that his lights were full on and he could see 200 feet ahead except in rounding the curve, where his vision was reduced to 100 feet; that when he first saw the truck it was 100 or 125 feet away; that he was then driving around a curve at a speed of 35 miles an hour and could stop within a distance of 60 or 65 feet on dry pavement. The question is, Why did he not stop? Was it because of ice on the pavement or because of unreasonable and improper speed under the circumstances? The plaintiff says it was a question for the jury, and citesDiederichs v. Duke,
The distance which the driver of the car had to travel on a dry pavement before he reached the truck gave him ample time and opportunity to stop and avoid a collision. That he made no reasonable effort to do so is evident. Instead, he went forward and covered the distance of 100 or 125 feet at such a speed that he crashed into the truck with a force so great that the three occupants of the car were thrown out and two of them instantly killed. Because he had timely warning of the danger, and by the exercise of reasonable care could have avoided it, the driver of the car was guilty of contributory negligence. The icy pavement "right near the truck" may have been a contributing factor in producing the injury, but if so it was slight. The principal cause was the speed of the car at the time it reached the ice. In view of the circumstances, it must be held to have been unreasonably excessive. The court did not err in directing a verdict in favor of the defendant on the ground that the plaintiff's decedent was guilty of contributory negligence as a matter of law. The judgment is affirmed, with costs to the defendant.
CLARK, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred. *10