Creitz v. Wolverine Engineering Co.

Fellows, J. (after stating the facts). The trial judge should have directed a verdict for defendant because of plaintiff’s contributory negligence. It is not to be expected that a temporary bridge or even á public highway will be kept as smooth or free from obstructions or defects as the floors of places of business usually are. Therefore Brown v. Stevens, 136 Mich. 311; Faulkner v. Manufacturing Co., 201 Mich. 182, and Wine v. Newcomb, Endicott & Co., 203 Mich. 445, are not applicable. Nor is the case similar to Dier v. [407] Voorhees, 200 Mich. 510, where the plaintiff’s decedent was upon the right side of the street, going with the traffic, and was run into by a runaway horse coming in the opposite direction. A case, quite in point, however, is Tracey v. Township of South Haven, 132 Mich. 492, an action brought for injuries sustained by reason of a defect in the highway. It was there said by Mr. Justice Carpenter, speaking for the court: “Her testimony does not warrant the inference that she exercised any care whatever, either in watching, the horse or observing the highway. While it is generally a question for the jury, and not for the court, as to what care should be exercised, this court is bound to say that no care is not due or reasonable care. (Citing cases.) * * * In this case the defect was not known to plaintiff, but it was open to her observation,had she paid any heed to her surroundings. It is urged that this court should not declare a rule which requires the driver of a vehicle to keep his eye constantly on the roadbed in front of his horse, or which will prevent his enjoying, to some extent, the beauty of the surrounding scenery. This opinion declares no such rule. It simply recognizes that, under the circumstances of this case, plaintiff was under an obligation to use some care. Her testimony fails to show that she used it, and presents no excuse for such failure.” While it is true that greater care is required where one is going into a place of known danger like a railroad crossing than when traveling elsewhere upon a public highway, still some degree of care is required in the latter instance. The day of the accident was bright, it was before sundown, plaintiff had his car under (control, was going but three or four miles an hour, could have stopped within the length of his car, his eyesight was good, the obstruction was in plain view. The slightest glance by plaintiff to the roadbed ahead of him would have revealed the gasoline engine and avoided the accident. The bridge was a temporary affair as was the highway traveled by plaintiff; [408] the work of constructing the new bridge was in progress; all to the knowledge of .plaintiff. As in the Tracey Case the plaintiff did not exercise due and reasonable care; he exercised no care. His want of care, his own negligence, contributed to the accident and defeated his right of recovery. See Zoltovski v. Gzella, 159 Mich. 620 (26 L. R. A. [N. S.] 435, 134 Am. St. Rep. 752); Gibbs v. Dayton, 166 Mich. 263; Tolmie v. Woodward Taxicab Co., 178 Mich. 426; Ude v. Fuller, 187 Mich. 483; Hill v. Lappley, 199 Mich. 369; Fulton v. Mohr, 200 Mich. 538. The judgment must be reversed without, a new trial. Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred.