Defendant's motions for directed verdict and for new trial were denied. On appeal defendant says that decedent was guilty of contributory negligence as a matter of law in driving his motorcycle at a speed greater than would permit him to bring it to a stop within the assured clear distance ahead, citing Elrich v. Schwaderer, 251 Mich. 33; Russell v. Szczawinski, 268 Mich. 112; Waterstradt v. Lanyon Dock Co., 304 Mich. 437; Winslow v. Veterans of Foreign Wars National Home, 328 Mich. 488; Nevill v. Murdey, 333 Mich. 486; and Morrison v. Demogala, 336 Mich. 298. Are these cases necessarily controlling in view of the proofs in this case? We think not. There is no showing of decedent's speed during the last 2 blocks, nor as to whether he saw what he should have seen and attempted to stop or to avoid the barricade.
"That one must so drive his automobile so as to be able to stop same within the range of vision requires one to operate his automobile so that he can perform all of the manual actions necessary to bring his automobile to a complete stop within such range. Thompson v. Southern Michigan Transportation Company, 261 Mich. 440: Russell v. Szczawinski, 268 Mich. 112; Buchel v. Williams, 273 Mich. 132. "That if the defendant in these cases was so blinded by the lights of another approaching automobile so that he could not see ahead for the distance within which he could stop, it was his duty to bring his automobile under such control that he could stop immediately, and it is further his duty that if he could not see, he must then stop his automobile.
Unless plaintiff's failure to stop within the assured clear distance ahead is excused by circumstances hereinafter referred to, he was guilty of contributory negligence as a matter of law. It is well settled by many decisions of this Court that it is negligence as a matter of law for one to drive an automobile along a public highway in the dark at such speed that it cannot be stopped within the clear distance that objects can be seen ahead of it by the driver.Budnick v. Peterson, 215 Mich. 678; Spencer v. Taylor, 219 Mich. 110; Holsaple v. Superintendents of Poor of Menominee County, 232 Mich. 699; 603; Lett v. Summerfield Hecht, 239 Mich. 699; Ruth v. Vroom, 245 Mich. 88 (62 ALR 1528); Boylon v. Reliable Cartage Co., 258 Mich. 5; Korstange v. Kroeze, 261 Mich. 298; Russell v. Szczawinski, 268 Mich. 112; Waterstradt v. Lanyon Dock Co., 304 Mich. 437; Barron v. Trupski, 326 Mich. 378. See CL 1948, ยง 256.305 (Stat Ann 1947 Cum Supp ยง 9.1565). โ REPORTER.
The fog bank was visible to any driver who was making proper observation of the road ahead. If the density of the atmosphere obscured the road from the vision of deceased, he should have operated his car, in view of these circumstances, in such a manner as would have enabled him to stop at once if necessary. Thompson v. Southern Michigan Transportation Co., 261 Mich. 440. See, also, Russell v. Szczawinski, 268 Mich. 112. We find that deceased was guilty of contributory negligence as a matter of law, and that an exception to the applicable law, as outlined, should not prevail, as plaintiff argues, because the atmospheric conditions present at the point of accident did not prevail generally.
Thus, in O'Rourke v. McConaughey (La.App.) 157 So. 598, 606, the court held that "if fog constitutes 'the greatest menace of transportation whether upon land or sea,' it likewise imposes the burden of most extraordinary and unusual care upon the operator of a vessel or vehicle navigating or traveling through the fog." Of similar import are: Galliano v. East Penn Elec. Co. 303 Pa. 498, 503, 154 A. 805, 807; Cormican v. Menke, 306 Pa. 156, 159 A. 36; Russell v. Szczawinski, 268 Mich. 112, 255 N.W. 731; Leonard v. Bottomley, 210 Wis. 411, 245 N.W. 849; B. O. R. Co. v. Fidelity Storage Co. 55 App. D.C. 92, 2 F.2d 310, 312; McFadden v. N. P. Ry. Co. 157 Wn. 437, 289 P. 1. Applying to plaintiff's conduct in the case at bar the standard of care required of the reasonably prudent person, we think that, as a matter of law, he was guilty of contributory negligence and for that reason cannot recover.
Under the existing weather and street conditions and with visibility poor, it was defendant driver's duty to exercise greater care and caution. In Russell v. Szczawinski, 268 Mich. 112, 115, we said: "If it was foggy or misty so that plaintiff's vision was bad or obscured, the duty was incumbent upon him to exercise greater care and caution."
Laws Supp. 1940, ยง 4697, Stat. Ann. 1940 Cum. Supp. ยง 9.1565). As contradistinguished from the circumstances involved in the cases just above noted, the instant case presents a situation within our decisions in the following cases: Lett v. Summerfield Hecht, 239 Mich. 699; Angstman v. Wilson, 258 Mich. 195 (31 N.C.C.A. 1); Moore v. United States Truck Co., 260 Mich. 56; Russell v. Szczawinski, 268 Mich. 112; Johnson v. Fremont Canning Co., 270 Mich. 524; Phillips v. Inter-City Trucking Service, Inc., 280 Mich. 30; Clark v. Jackson, 286 Mich. 355. In other words, defendants' vehicle loaded with the crane and moving in the same direction in which plaintiff was driving was of such a character that as a matter of law he was bound to see it as he approached and he was also bound to be driving his own automobile at such a rate of speed that it could be stopped in time to avoid collision.
We have recognized the right to stop a vehicle on the highway for various emergency purposes. See Bowmaster v. William H. DePree Co., 252 Mich. 505; Bowmaster v. William H. DePree Co., 258 Mich. 538; Edison v. Keene, 262 Mich. 611; Ozga v. Clock, 266 Mich. 58; Russell v. Szczawinski, 268 Mich. 112; Johnson v. Fremont Canning Co., 270 Mich. 524. In the case at bar, plaintiff stopped his car partly on the highway for the purpose of ascertaining the trouble he was having with his car, and the making of such necessary repairs as would enable him to proceed a few miles further to his home.
An automobile driver, whose view is not obstructed, is bound to see pedestrians who come within the range of his lights. See Lett v. Summerfield Hecht, 239 Mich. 699; Haney v. Troost, 242 Mich. 693, and Russell v. Szczawinski, 268 Mich. 112. These cases, it is true, involved collisions with large objects, such as trucks and other automobiles, but the same principle is applicable to the present situation where a pedestrian is involved.
Ann. ยง 9.1565); Bowmaster v. William H. DePree Co., 252 Mich. 505; Russell v. Szczawinski, 268 Mich. 112. Plaintiff testified that, after defendant Aldrich struck her, she was dragged a distance of 30 to 40 feet. Aldrich, on the other hand, testified that, upon entering the cut in the road, he reduced his speed to 4 or 5 miles per hour, turned on his headlights, maintained a look-out and, when he saw plaintiff, about six feet ahead, he put on his brakes and stopped his truck within four feet. This conflict in the testimony raised an issue of fact for the jury.