I do not concur in the opinion of Mr. Justice SHARPE.
Plaintiff testified that there was a good, smooth shoulder, 8 or 10 feet in width, next to the pavement upon which he could have, intended to, and thought he had, driven and stopped his automobile; that his failure to discover that it was still on the pavement as he brought it to a stop was due to a light fall of snow which made it difficult to distinguish *Page 509 between the pavement and the adjacent shoulder, and the further fact that his vision was obscured by frost on the windshield so that he could not see whether he was on or off the pavement. He admitted that he could have rolled down the right front window and, by looking at a bank beyond the shoulder, determined where the shoulder was, but that he did not think he had to do that. Had plaintiff driven with his windshield cleared, he could have made a like determination.
There was nothing about the physical condition of the highway to prevent or render impracticable driving off the pavement and onto the shoulder. This phase of the case presented no question of fact for the jury. But did the frosted condition of plaintiff's windshield serve to transform into a jury question whether it was practicable to park off the paved part of the highway? Section 4734, 1 Comp. Laws 1929 (Stat. Ann. § 9.1602) provides:
"(a) It shall be unlawful for any person to drive any vehicle upon a highway with any sign, poster or other nontransparent material upon the front windshield, side wings, side or rear windows of such motor vehicle other than a certificate or other paper required to be so displayed by law."
Violation of this statute was held to be negligence per se in the case of Strong v. Kittenger, 300 Mich. 126. Driving with windshield so covered with frost that driver cannot see where he is on the highway is negligence as a matter of law. Ebel v.Bruzewski, 296 Mich. 654; Rowe v. Vander Kolk, 278 Mich. 564. It was this negligence of plaintiff, and not any impracticability of driving off the pavement and stopping on the shoulder, that caused plaintiff to stop his automobile on the pavement. The trial court was correct in holding that, as a matter of law, it was *Page 510 practicable for plaintiff to stop his automobile off the paved part of the highway and that, hence, his stopping the automobile on the pavement was in violation of the statute* and negligence per se.
Plaintiff urges that, because his automobile was not struck and he was hit while he was out of his automobile and standing on the pavement, the fact that his automobile was parked on the pavement was not a contributing factor to the accident. Here we must look to plaintiff's purpose in stopping his automobile and standing on the pavement alongside it. That purpose was to remove the frost from the outer surface of his windshield. Whether he had been struck while seated in his car and reaching out to clear the outside of his windshield, or, as actually occurred, while standing on the ground alongside his car similarly engaged, in either case the location of his automobile on the pavement would be one of the factors contributing to the accident. Had his automobile been parked off the pavement, as required by statute, while plaintiff was removing the frost from the windshield, he would not have been struck by defendant's car. Plaintiff's negligence in this regard was a proximate cause of the accident.
Citing the case of Marth v. Lambert, 290 Mich. 557, as authority therefor, plaintiff contends that he should be viewed as a pedestrian; that he was not required, as a matter of law, to look back for approaching vehicles; that after he saw defendants' car 200 feet distant on the opposite side of the pavement he could assume that defendant would continue to travel on that side; that he could assume "that the defendant would not operate his car blind." That plaintiff was not justified in the latter assumption follows from his testimony that he knew *Page 511 that frost was forming not only on his windshield but on that of any other car driving along there that morning and that he himself had been driving "blind" so that he could not see where he was on the highway. This factual element distinguishes the case from the Marth Case to such an extent that the plaintiff was not warranted in assuming that defendants' car would maintain its course on the left side of the pavement. This, coupled with his knowledge of the snow-covered condition of the highway, served, or should have served, to put plaintiff on notice that he had placed himself in a perilous position in which he was not warranted in disregarding approaching traffic and making no observation as to his own location on the highway.
In the case of Marth v. Lambert, supra, on page 565, appears the following:
"In Tio v. Molter, 262 Mich. 655, we said:
"`Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, but they may not rest content on that assumption andtake no care for their own safety.' People v. Campbell (syllabus) 237 Mich. 424." (Italics supplied.)
What did plaintiff do to take care for his own safety? After getting out of his car he could have made observation and determined where he was standing on the highway. This he neglected to do. He just assumed he was on the shoulder. TheMarth Case affords no authority for plaintiff's right to indulge in such assumption. Furthermore, although he saw defendants' car coming when it was 200 feet distant, he paid no further attention to it until it was but 20 feet distant and too late to avoid the accident. Applicable here is the following language from Boerema v. Cook, 256 Mich. 266, 268: *Page 512
"The requirement that one must use reasonable care for his own protection was not satisfied with the single observation which plaintiff made. * * * The situation was such as to call for further observation."
In the case of Stern v. Franklin, 290 Mich. 467, 471 (8 N.C.C.A.[N.S.] 113), we quoted with approval from 3 Cooley on Torts (4th Ed.) p. 423:
"One who voluntarily places himself in, or remains in, a position which he knows, or with reasonable care should know, is dangerous, * * * cannot recover for the ensuing injury."
Plaintiff testified that had he made observation and discovered that he was standing on the pavement, he would have done something else than he did. This might have been to re-enter his car or to step around it during the period of approximately five seconds while defendants' car was traveling 200 feet. Had plaintiff pursued either course, he would not have been hit.
I am not in accord with the theory that plaintiff was a pedestrian at the time of the accident. (See Stout v.Skinner, 283 Ill. App. 330; Goff v. Eli Witt Cigar Co.,97 Fla. 544 [121 So. 570] and Gooschin v. Ladd, 177 Wash. 625 [33 P.2d 653]). Nonetheless, even though plaintiff be viewed as a pedestrian, his failure to observe where he was standing on the pavement and to make further observation of defendants' approaching car and to take care for his own safety constituted negligence, as a matter of law, contributing to the accident.
For these reasons I believe the judgment non obstanteveredicto should be affirmed, with costs to the defendants.
CARR, C.J., and BUTZEL, BOYLES, REID, and NORTH, JJ., concurred with DETHMERS, J.
* 1 Comp. Laws 1929, § 4718, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4718, Stat. Ann. 1946 Cum. Supp. § 9.1586). — REPORTER. *Page 513