Landon v. LaCombe

Danhoe, J. This action was brought to recover damages for injuries sustained in an automobile accident which occurred on an east-west two-lane country road at about 7:30 p.m. on March 16, 1963. It was misty, foggy, and dark at the time of the accident; there was some snow on the shoulder of the highway, but there was ample place to park in the vicinity of the accident off the traveled portion of the road. Plaintiff, Lewis Landon, had approached from the rear the automobile of James Mulnix which had run out of gas and which was partially on the traveled portion of the road facing east; the taillights of the Mulnix automobile were operating. Landon sought gasoline and when he returned, he parked on the south side of the highway facing west toward any oncoming traffic. He backed his vehicle up to [523] a point within 3 to 6 feet of the rear of the Mulnix vehicle. He left his headlights on, opened the left front door, got out and helped pour gasoline into the gas tank in the rear of the Mulnix car. Landon’s fiancee remained in the vehicle which was facing toward approaching traffic. No one was posted to warn of any oncoming cars. Defendant approached the two automobiles from the west in the south lane. Mulnix’s car was apparently obstructed from view by Landon’s vehicle which had the left door open. Defendant testified he could not tell whether the headlights were coming at him; as he came closer, he then determined that the plaintiff’s vehicle was on his side of the road. He pulled to the right to attempt to avoid a collision and went into the ditch on the south side; but before coming to a stop, he proceeded east to the point where he struck plaintiff in the leg and also the right rear of the Mulnix car. In the appeal from the no cause of action judgment, plaintiffs assert that the lower court erred in finding Landon contributorily negligent in parking-on the left side of the highway with the headlights operating, citing Bowmaster v. William H. DePree Co. (1930), 252 Mich 505. Also, plaintiffs assert the trial court erred in failing to apply the doctrine of subsequent negligence, contending that Landon’s negligence, if any, had come to rest. An examination of Bowmaster v. William E. DePree Co., supra, which was reviewed by the Supreme Court a second time (see Bowmaster v. William H. DePree Co. [1932], 258 Mich 538), and the line of cases which have applied the Bowmaster holding where there was an accident involving an automobile parked on the highway allegedly in violation of MCLA § 257.672 (Stat Ann 1969 Cum Supp § 9.2372), [524] discloses the trial court did not err in finding plaintiff negligent under the facts of this case. Unlike the facts in Bowmaster, Edison v. Keene (1933), 262 Mich 611, and Ozga v. Clock (1934), 266 Mich 58, there was no necessity or emergency; it was not therefore reasonable to park as he did, obstructing the lane and the red taillights of the Mulnix automobile, especially when there was ample room to park nearby. The headlights, unlike in Bowmaster, which occurred in the daytime, did not provide a warning on this dark, foggy night; rather, the lights misled the defendant, causing him to drive off the south side of the road when he approached the vehicle in his lane. Furthermore, the trial court properly concluded that the facts of this case do not support the application of the doctrine of subsequent negligence. Plaintiff did not establish at trial and has not shown on appeal that his negligence had in fact ceased prior to the accident and that he was in a position of peril from which he could not extricate himself. Also, it has not been established that defendant did in fact see plaintiff, or could have seen plaintiff while exercising reasonable care, in time to avoid striking him, as plaintiff was obstructed from view by his vehicle which defendant avoided hitting. See Krouse v. Southern Michigan Railway Co. (1921), 215 Mich 139, and Shafkind v. Kroll (1962), 367 Mich 42, for a discussion of subsequent negligence. Affirmed, costs to defendant. All concurred.