Boyle v. Moseley , 258 Mich. 347 ( 1932 )

I am not in accord with opinion of Mr. Justice NORTH. The decision of the trial judge granting defendant's motion for judgment non obstante correctly disposes of the case:

"The accident happened upon a busy paved highway, about nine o'clock in the evening, between Gladstone and Escanaba. Four young people were on their way to a dance and were in a hurry. One girl sat in the front seat with the defendant. The injured girl and a young man sat in the rear seat. The automobile was a coach, new, and in good order. They were driving at a speed of 35 to 40 miles per hour. No one objected to the speed. They met many cars. There is no evidence that they passed any cars going in the direction in which they were traveling. It is not disputed that the driver was keeping a proper lookout ahead, and it appears that he and other occupants of the car saw approaching, and some distance away, a car with a very bright headlight, so bright that, as it came close, the injured girl pulled her coat collar up around her head because of the glare. The driver testified that he could see the edge of the road until, suddenly, when the other car was near him, it seemed to swerve in his direction, and he was blinded momentarily, and that to avoid a collision he immediately swung to the right far enough to put his right wheels on the shoulder of the road. The injured girl confirms the swing to the right and no one disputes the sudden momentary blinding of the entire party. The auto traveled a short distance, variously estimated at from 50 to 120 feet, when it struck a mail box post, which ditched the auto and caused it to overturn and injure the girl.

"The girl testified that the defendant drove all the way with only one hand on the wheel, and with the other hand on the knee of the girl who sat with him. Defendant positively denies this. Her evidence loses its force entirely as applied to the time of the accident, when we consider that the young woman was sitting all the while in the back seat of the automobile, and that, when the bright lights struck the auto, she put her coat collar over her head. Taken all together there is possibly some evidence which might sustain a verdict based upon ordinary negligence. Even this is doubtful. The auto was new and in good order, the lights were properly used, the defendant was a driver of 10 years' experience, and the road was paved. In the light of present day practices, considering the time, the place, and the conditions, the speed was not excessive. The emergency was one that arises suddenly and is a common and frequent hazard of night driving. Whether to stop or keep going for safety was a matter for instant judgment and decision. There is nothing in the evidence that tends to show that the defendant failed to do anything that a reasonably careful and prudent man might have done, or that he did anything that such a man might not have done. But Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648), was then in force. It was necessary for the plaintiff to show facts from which a jury would be warranted in finding, either from the direct evidence or from fair inferences therefrom, that at the time the injuries were sustained, the injured person was not only a passenger in the automobile but that her injuries were occasioned by the gross negligence or wilful and wanton misconduct of the defendant. One who rides as a guest in an automobile, since the act of 1929 became effective, assumes the risk of all ordinary hazards and negligence. If, when so riding, he is injured, it is only when the injuries are occasioned by the gross negligence or wilful and wanton misconduct of the driver, that he can recover damages from his host.

"I cannot see that the evidence here shows any gross negligence or wilful and wanton misconduct, as these terms have been repeatedly defined by our Supreme Court."

Judgment is affirmed.

SHARPE, FEAD, and BUTZEL, JJ., concurred with CLARK, C.J.