VAN DEN HEUVAL v. PLEWS

BUSHNELL, J.

Plaintiff, in an action tried by the court without a jury, recovered a judgment of $757.50 for damages to his car by reason of the claimed negligent operation of a truck owned by defendant Gordon Van Cheese Company and operated by defendant Plews. Plaintiff's car at the time of the collision was unoccupied and parked near a tree about 15 feet from the east edge of the paved portion of U.S. Highway No. 31, and about 50 feet south of the south line of its intersection with an east-and-west graveled county road.

The collision occurred on the afternoon of July 26, 1938, when visibility and weather conditions were normal. Defendant Plews was driving the Cheese Company truck south on U.S. Highway No. 31 toward the intersection and descending a hill at a speed of about 40 miles per hour. When about 200 feet north of the intersection he noticed cars approaching from the south. One of them, a Ford, was first seen by him when it was about 200 feet south of the intersection. When Plews was 40 or 50 feet from the crossing, the Ford stopped to turn left on the county road. Plews applied his air brakes, and discovered he could not control his truck, which weighed 7,000 pounds and had a load of 2,500 to 3,000 pounds on it. He crossed to his left side of the road, missed the Ford, and hit plaintiff's car, shoving it up against a tree.

Defendant Plews' claim of an emergency is of no avail because, having passed over this crossing weekly for approximately three years, he was bound to know that approaching cars might make left-hand turns in the intersection and was required by law to have his truck under such control that he could avoid a collision with objects in plain view. The proximate cause of the accident was Plews' negligence. No complaint is made as to the damages being excessive.

The judgment entered upon the finding of the court, sitting without a jury, is affirmed, with costs to appellee.

BUTZEL, C.J., and WIEST, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.