Hole v. Erskin , 3 Mich. App. 302 ( 1966 )

3 Mich. App. 302 (1966) 142 N.W.2d 482

HOLE
v.
ERSKIN.

Docket No. 481.

Michigan Court of Appeals.

Decided May 24, 1966.

Robert L. Douglas and Goggin & Baker (Edward R. Goggin, of counsel), for plaintiff.

Dilley & Dewey (Newton Dilley, of counsel), for defendant.

J.H. GILLIS, J.

Plaintiff brought suit pursuant to the provisions of the civil liability act^[1] for injuries sustained while a passenger in defendant's automobile, which was involved in a collision with a farm vehicle. Trial commenced on August 13, 1964, before the court without a jury. Since the issue in the instant case involves the granting of defendant's motion for summary judgment, the facts of the case are outlined as they were developed by plaintiff's attorney in his opening statement.

Defendant, 71 years old, was a frequent customer in the restaurant where plaintiff was employed as a waitress. On the night in question, August 9, 1961, defendant invited plaintiff to go for a ride with him to visit his daughter and son-in-law who lived in Littlefield, Michigan, approximately 35 miles from the restaurant. Plaintiff accepted. They visited defendant's relatives in Littlefield. On the return trip, at approximately 9:30 p.m., defendant drove over an incline in the road and saw a white light approximately 500 feet down the road. As the defendant proceeded down the hill he took his foot off the accelerator but didn't apply the brakes for a period of time. The light got brighter as he came closer to it so that he could not see ahead. He concluded that this light he saw was a "one eyed car." He could see the road immediately in front of him by holding his hand up over his eyes. The light appeared to be on its own side of the road. When he was 3 car lengths away the defendant first saw the object under the light but could not identify it. He then knew it was on his side of the road. At this point he was traveling about 25 miles per hour. The defendant put on his brakes and swerved to the right but was unable to avoid striking the rear of the tractor, whereby plaintiff sustained the injuries for which damages are sought in the instant action.

At the conclusion of plaintiff's opening statement, the defendant moved the court for a summary judgment of no cause for action, contending that on the basis of the pleadings, depositions on file and the opening statement, there were no facts from which the court could find the defendant guilty of gross negligence.

The court granted the defendant's motion, stating that "if the facts were proved as stated in the plaintiff's opening statement, such facts would not constitute gross negligence."

Plaintiff appeals, contending that the trial court erred in granting the defendant's motion.

Summary judgment may be granted when there are no material issues of fact to be decided.^[2] In the instant case the facts were considered by the court in the light most favorable to the plaintiff. The question the court then decided was whether the facts thus viewed were sufficient to support a finding of gross negligence. The court decided the facts were insufficient to support such a finding. In Rogowski v. City of Detroit (1965) 374 Mich. 408, 416, the court quoted with approval from Whittenberg v. Carnegie (1950), 328 Mich. 125, 126, to the effect that:

"The mere existence of issues of fact is, however, no bar to an entry of summary judgment for defendant, if, upon resolving all such issues in favor of plaintiffs, the defendants would still be entitled to a judgment as a matter of law." (Citation omitted.)

Our Supreme Court, in reviewing recent cases concerning gross negligence, has stated:

"The thread which seems to run through all is a showing that the driver had an ``affirmatively reckless state of mind with intent to depart from careful driving.'" Brooks v. Haack (1965), 374 Mich. 261, 265. (Citation omitted.)

In the instant case, the facts viewed most favorably to plaintiff are not sufficient to support a finding of gross negligence.

The judgment is affirmed. Costs to appellee.

HOLBROOK, P.J., and BURNS, J., concurred.

NOTES

[1] CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101).

[2] GCR 1963, 117.2. — REPORTER.