Olszewski v. Dibrizio , 281 Mich. 423 ( 1937 )

Plaintiff sued defendant for damages arising from personal injuries alleged to have been sustained by her while she was riding with defendant in his automobile as a guest passenger, August 4, 1935. She charges defendant with gross negligence arising from driving at an excessive rate of speed and in violation of the statute, and that "said defendant wilfully and wantonly removed both of his hands from the steering wheel of his said automobile in an effort to light a cigarette," as a result of which the automobile left the road, ran into a ditch, tipped over and plaintiff was injured. Upon the hearing, the trial court directed a verdict for defendant. Plaintiff appeals.

The only question is whether the trial court was right in directing a verdict for defendant.

Upon motion for directed verdict, it is the duty of the trial court to view plaintiff's testimony in its most favorable light. The record shows plaintiff up to the time of the accident had been using ordinary care. It was a bright day, the pavement was dry, and the parties were on their way to a picnic.

In Willett v. Smith, 260 Mich. 101; McLone v. Bean, 263 Mich. 113; Elowitz v. Miller, 265 Mich. 551;Johnson v. Fremont Canning Co., 270 Mich. 524; and Sherman v.Yarger, 272 Mich. 644, this court attempted to enumerate the essential elements of wilful and wanton misconduct as (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Ordinary negligence fulfills the requirements of this attempted definition or enumeration and by the application of the test prescribed becomes synonymous with gross negligence. We have frequently held and now hold that gross negligence as used in the guest statute^* is synonymous with wilful and wanton misconduct.Oxenger v. Ward, 256 Mich. 499; Bobich v. Rogers, 258 Mich. 343; Mater v. Becraft, 261 Mich. 477;Findlay v. Davis, 263 Mich. 179; Riley v. Walters, 277 Mich. 620; Breckenridge v. Arms, 279 Mich. 384. The trial court arrived at a correct conclusion.

Judgment affirmed, with costs.

BUTZEL, BUSHNELL, and CHANDLER, JJ., concurred with POTTER, J.

^* 1 Comp. Laws 1929, § 4648. — REPORTER.