Paquette v. Consumers Power Co.

Sharpe, J. (dissenting). On the morning of February 12, 1945, plaintiff, Frank Paquette, a farmer 66 years of age was driving his automobile from his home on M-50 towards Eaton Rapids. He had lived on this highway for 27 years. M-50 is a paved highway, 20 feet in width, with a smooth shoulder 8 to 10 feet wide on each side, beyond which is a ditch. Plaintiff left his home at about 9 a.m., with the intention of driving to Eaton Rapids. There had been á light fall of snow the night before. It was a foggy morning and plaintiff’s windshield became frosted. He stopped his car on the paved portion of the highway for the purpose of cleaning his windshield. The left side of his car was from 2 to 4 feet from the center of the pavement. At this time Don Smrchek was driving a car, owned by the Consumers Power Company, in the same direction at a speed of 25 to 30 miles per hour. The windshield of his car was obscured by frost and defendant Smrchek was driving by looking out of the window at his left. On or about this time, plaintiff alighted from his car and was in the act of cleaning his windshield when the car driven by Smrchek collided with plaintiff’s car and severely injured plaintiff. Plaintiff brought an action to recover damages for personal injury to himself, doctor bills incurred and cost of repairing his car. The cause came on for trial. At the close of plaintiff’s proofs, defendants made, a motion for a directed verdict. The trial court denied the motion, reserving his rights under the Empson act. Defendants offered no *504 proofs and the jury returned a verdict for plaintiff in the amount of $6,500. Upon motion by defendants, the trial court directed a verdict non obstante veredicto in favor of defendants upon the theory that plaintiff was guilty of contributory negligence as a matter of law, saying: “Reference to the facts as outlined above show that the plaintiff, on a road which he knew well, and on a morning when the weather conditions were bad, stopped his car on the pavement, when it was practicable for bin! to have driven off the highway. Had he taken the precautions of an ordinarily prudent man, he would have looked and observed that he was on the highway, and could have driven off onto the smooth shoulder some 8 or 10 feet in width, to the right. In effect, he stopped on the highway when visibility was bad, the road in bad condition, without determining where he was, and was hit by a car approaching from the rear.” Plaintiff appeals. "Where judgment is rendered non obstante veredicto, the. testimony most favorable to the party against whom the judgment is rendered must be accepted. Tested in the light of the above rule we find that the pavement over which plaintiff was traveling was 20 feet in width; that snow had fallen during the night making it difficult to determine where the edge of the pavement was; that excepting for a frosted windshield it was not unsafe to drive a car; that traffic was light on the highway; that visibility was such that one could see a car 200 feet away; that at the time plaintiff stopped his car he thought he was off the pavement; that seeing defendant’s car 200 feet away on the opposite side of the pavement, he assumed said car would continue in a straight course; that when plaintiff got out of his car and while in th,e act of cleaning his windshield he again saw defendant 20 *505 feet away, bearing down upon him on plaintiff’s side of the highway; and that realizing the danger he was in and knowing that he could not again re-enter his car, he threw himself upon the hood of his car in order to avoid getting hit. ■Prior to the enactment of Act No. 318, Pub. Acts 1939, amending Act No. 318, § '26, Pub. Acts 1927, the statute relating to parking a vehicle on the highway read as follows: “It shall be unlawful to park a vehicle on the beaten track or paved surface of any highway outside the limits of any village or city.” 1 Comp. Laws 1929, § 4718 (Stat. Ann. § 9.1586). Section 26 of the amended act reads as follows: “Outside of the limits of any city or village, it shall be unlawful to stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or leave such vehicle off such part of said highway.” (Comp. Laws Supp., 1940, § 4718 [Stat. Ann. 1946 Cum. Supp. §.9.1586]). Under the old act, a temporary stop for necessary purposes did not constitute a violation of the act. In Sahms v. Marcus, 239 Mich. 682, plaintiff stopped his car to recover his wife’s hat ydiich had blown off. We there'said: ‘ ‘ There is a difference between stopping and parking. The general purpose of the statute appears to be aimed at dead vehicles, i.e., vehicles that are unable to move under their own power and are left standing on the pavement. It is- also aimed at live vehicles that are able to move under their own power but are left standing on the pavement without watchman or caretaker, and also to vehicles that are able to move but are standing on the pavement to *506 serve some purpose of the occupant or occupants. We think the idea of the legislature was to keep the improved highways open for travel and free from nonmoving vehicles. This purpose would not prohibit a temporary stop for a necessary reason. See 1 'Blashfield’s Cyclopedia of Automobile Law, p. 558.” In Bowmaster v. William H. DePree Co., 258 Mich. 538, we held that the owners of a truck were not negligent per se in obstructing the wrong side of a highway for the purpose of rendering assistance to another motorist whose car was in a ditch, where proper notice was given by turning on the bright lights of the truck which was facing in the direction from which traffic would come. In Edison v. Keene, 262 Mich. 611, we held, that parking on a highway means something more than a mere temporary or momentary stoppage on the road for a necessary purpose. See, also, Osga v. Clock, 266 Mich. 58. In entering judgment for defendants non obstante veredicto, the trial court stated: “Plaintiff, on a road which he knew well, and on a morning when the weather conditions were bad, stopped his car on the pavement, when it was practicable for him to have driven off the highway.” ■ The first question to determine is whether'under the amended act, a temporary stop for necessary purposes may be made without violating the purposes of the amended act. The purpose of the amended act is to prevent the stopping or parking of a car on the main or paved portion of the highway when it can be parked off the main or paved portion of the highway. "\J7e do not think the act was intended to absolutely prohibit a temporary stop for necessary repairs. *507 Defendants rely upon Holmes v. Merson, 285 Mich. 136, for the rule that the violation of a statute is negligence per se if it is the proximate cause of an injury; and urge that plaintiff may not recover as it was practicable for him to. stop his vehicle off the paved or main traveled portion of the highway as required by Act No. 318, §%26, Pub. Acts 1927, as amended by Act No. 318, Pub. Acts 1939. Plaintiff urges that he was a pedestrian when he alighted from his car and was standing on the pavement engaged in the act of cleaning his windshield; and that “when it is practicable” to stop off the pavement is a question of fact for a jury and not a question of law for the court. Plaintiff relies upon Marth v. Lambert, 290 Mich. 557, in support of his claim that the contributory negligence of one stopping his automobile upon a paved highway to ascertain if repairs to his automobile are needed becomes a question for the determination of a jury. In that ease plaintiff stopped his ear on a' paved highway, got out of his car and was in the act of examining his gas tank. When plaintiff got out of his car he saw defendant 200 feet away in the center lane of a three-lane highway and traveling in the same direction as plaintiff. We there held that plaintiff was not guilty of contributory negligence as a matter of law. In the case at bar, plaintiff alighted from his car for the purpose of making necessary repairs. Safe driving required that his windshield be cleaned. He thought he was off the pavement when he stopped his car. Because of the frosted windshield, visibility was bad, whether it was .practicable for him to have driven off the paved portion of the highway under the above circumstances becomes a question upon which the minds of men could well differ. We are unable to say that plaintiff was guilty of con- *508 , tributory negligence as a matter of law in stopping Ms car on tbe Mgbway as above related. Nor can we say that plaintiff was guilty of contributory negligence as a matter of law in doing wbat be did after be bad stopped bis car. He first saw defendant’s car 200 feet away traveling on tbe opposite side of tbe highway from where plaintiff was traveling. When he alighted from his car and while in tbe act of cleaning bis windshield, he saw defendant’s car 20 feet away. At that time be did not have time to re-enter bis car and drive to a place of safety. He did not stand on tbe pavement to await the onrushing ear, but attempted to throw himself onto tbe hood of bis car in order to avoid being bit. Under such circumstances bis contributory negligence becomes a question of fact to bo determined by tbe jury or a trier of facts. It is conceded that defendant Don Smrfehek was guilty of negligence and there being no question of excessive damages, it follows .that tbe trial court was in error in entering judgment for no cause of action. Judgment should be reversed and tbe cause should be remanded for entry of judgment on the verdict. Plaintiff should recover costs. Bushnell, J., concurred with Sharpe, J.