Holloway v. Cronk

76 Mich. App. 577 (1977) 257 N.W.2d 175

HOLLOWAY
v.
CRONK

Docket No. 28885.

Michigan Court of Appeals.

Decided July 7, 1977.

Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. (by David K. Barnes), for plaintiff.

Selb, Dickinson, Pike, Mourad & Brandt (by David R. Tuffley), for defendant.

Before: BASHARA, P.J., and QUINN and BEASLEY, JJ.

BASHARA, J.

The defendant appeals a Wayne County jury verdict in favor of plaintiff for defendant's negligence in an intersectional automobile accident. It is contended by defendant that the trial judge erred in his instructions to the jury and in denying defendant's motion for directed verdict.

Plaintiff stated that he approached Outer Drive Boulevard from a subordinate street, stopping at the initial point of the intersection in compliance with the stop sign. Observing no oncoming traffic, he entered the median of the boulevard and came to a stop to look for oncoming traffic before executing a left turn. Plaintiff's witness, Mrs. Treas, the driver of an approaching automobile, testified that when she observed plaintiff's car it was moving slowly into the intersection.

Plaintiff alleged that he observed only Mrs. Treas' automobile approaching at approximately the speed limit and at a distance that would permit his safe entrance into the intersection. However, upon entering the intersection plaintiff's car was struck in the side by defendant, fatally injuring plaintiff's passenger and seriously injuring plaintiff. Mrs. Treas testified that defendant's car was traveling at a high rate of speed, approaching 60 miles per hour and accelerating, whereas the posted speed limit is 35 miles per hour. She further indicated that the speed of defendant's auto so frightened her that she pulled over to the right side of the road to allow him to pass.

At the conclusion of plaintiff's case-in-chief the defendant's motion for directed verdict was denied. At the close of proofs the trial judge instructed the jury on the issue of defendant's willful and wanton misconduct pursuant to Standard Jury Instruction 14.02.^[1] Defendant requested, pursuant to his testimony of traumatic amnesia caused by the accident, that the jury be instructed on a presumption of defendant's exercise of ordinary care in accordance with SJI 10.01.^[2] The defendant's request was denied.

The trial judge also instructed the jury regarding MCLA 257.649(e); MSA 9.2349(e),^[3] forfeiture of right-of-way for excessive speed, but denied defendant's request for an instruction on MCLA 257.649(f); MSA 9.2349(f)^[4] concerning plaintiff's failure to stop at a stop intersection.

Defendant's claim that the trial court erroneously denied his motion for directed verdict is without merit. Hendershott v Rhein, 61 Mich. App. 83; 232 NW2d 312 (1975), and Verran v Blacklock, 60 Mich. App. 763, 231 NW2d 544 (1975).

Defendant's contention that the trial judge erred in his instructions to the jury regarding MCLA 257.649; MSA 9.2349 is also without merit. The clear language of the statute,^[5] as well as our decisions in Green v Richardson, 69 Mich. App. 133; 244 NW2d 385 (1976), and Sabo v Beatty, 39 Mich. App. 560; 197 NW2d 871 (1972), refute the defendant's claim of error. As we articulated in Sabo, supra, § 649 was amended by 1966 PA 237. That amendment separated the forfeiture of right-of-way provision into a distinct subsection. The apparent legislative intent, as implied in Green v Richardson, 69 Mich App at 139; 244 NW2d at 388, was to make the forfeiture provision applicable to all right-of-way provisions under § 649. MCLA 257.649; MSA 9.2349. Further, defendant admits in his appellate brief that there was no stop sign at that point. Thus, we agree with the trial judge's instructions, and add, incidently, that an instruction on MCLA 257.649(f); MSA 9.2349(f) would have probably confused the jury unnecessarily and resulted in reversible error.

The uncontroverted testimony of plaintiff's witness, Mrs. Treas, provides ample evidence to rebut a presumption that defendant was free from negligent operation of his automobile. Consequently, we conclude that it was a proper exercise of the trial judge's discretion to deny defendant's request for a jury instruction on traumatic amnesia pursuant to SJI 10.09.

Defendant contends that the trial court erred in instructing the jury on willful and wanton misconduct under SJI 14.02. The argument defendant posits is that the only evidence of his negligence was Mrs. Treas' testimony as to his excessive rate of speed. Excessive speed only, defendant argues, cannot support a finding of willful and wanton misconduct, and, therefore, the trial court's instruction was erroneous. The prejudicial effect of which defendant complains is the negation of his defense of plaintiff's contributory negligence.

In resolving this final issue, we must determine whether the testimony of a lay witness as to defendant's excessive speed is sufficient in and of itself to raise an issue of willful and wanton misconduct so that the trial judge, in a proper exercise of his discretion, may instruct the jury pursuant to SJI 14.02. No definitive ruling on this issue has been made by the Michigan Courts.

There is no exact standard for determining where ordinary negligence ends and willful and wanton misconduct begins; each case must be decided on its own facts. Goss v Overton, 266 Mich. 62; 253 N.W. 217 (1934). Thus, the determination as to the existence of willful and wanton misconduct on the part of the actor is a question of fact to be resolved by the trier of fact. Karney v Upton, 353 Mich. 262; 91 NW2d 297 (1958). This Court has held that only where the evidence unquestionably shows the existence or absence of willful and wanton misconduct may the trial judge rule on the issue as a matter of law. Shepherd v Barber, 20 Mich. App. 464; 174 NW2d 163 (1969).

In Hoag v Paul C Chapman & Sons, Inc, 62 Mich. App. 290, 299; 233 NW2d 530, 535 (1975), this Court, reiterating the holding of Tien v Barkel, 351 Mich. 276; 88 NW2d 552 (1958), established the following test for willful and wanton misconduct:

"``(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.'"

The Supreme Court has placed principal consideration upon the actor's state of mind, which, it has concluded, is "necessarily a matter of inference from the facts in each case". Turner v Cotham, 361 Mich. 198, 208; 105 NW2d 237, 242 (1960), citing Karney v Upton, supra. Excessive speed itself was held in Turner, supra, to be insufficient to impose liability under the guest passenger statute unless accompanied by willful and wanton misconduct. It was concluded, however, that the presence of willful and wanton misconduct is a question of fact. See also Anderson v Gene Deming Motor Sales, Inc, 371 Mich. 223, 230; 123 NW2d 768, 771 (1963).

We conclude that evidence of excessive speed may be sufficient itself to raise an issue of willful and wanton misconduct for trier of fact resolution. Excessive speed may raise an inference that the actor has that state of mind which satisfies the test promulgated by this Court in Hoag, supra.

An automobile, when operated at an excessive rate of speed, becomes a dangerous instrumentality capable of inflicting serious injury or death. Safety on our roads and highways demands operation of motor vehicles at reasonable speeds. Whenever a driver causes injury to another and it is shown that the speed at which he was driving is so excessive as to constitute a willful and wanton disregard for the safety of others, our policies will not countenance using the victim's contributory negligence as a defense to liability.

In the case under review there was uncontroverted testimony that the defendant operated his car on a city street, at night, in a posted 35 mile per hour zone at speeds permitted only on expressways and limited-access highways. We cannot say that the trial judge abused his discretion in concluding that this evidence raised an issue as to defendant's willful and wanton misconduct for jury consideration. Accordingly, the instruction to the jury pursuant to SJI 14.02 was proper.

However, we must caution that a trial court should not place an issue of willful and wanton misconduct before the jury that is not genuinely raised by the facts. Since a finding of willful and wanton misconduct deprives the defendant of a valid defense of plaintiff's contributory negligence, a jury instruction on that issue will constitute reversible error where the issue does not reasonably arise from the evidence.

Affirmed. Costs to plaintiff.

NOTES

[1] The text of that instruction is:

"Plaintiff charges the defendant with willful and wanton misconduct.

"The term ``willful and wanton misconduct' means more than the failure to use ordinary care. It means conduct which shows * * * (a reckless disregard for the safety of others in the face of circumstances involving a high degree of danger).

"Even if you decide plaintiff was contributorily negligent, that will not defeat plaintiff's claim for damages, if you also decide the defendant's conduct was willful and wanton, because contributory negligence is no defense where there is willful and wanton misconduct by the defendant."

[2] The pertinent test of that instruction is:

"The defendant claims a loss of memory concerning the facts of this case and caused by the occurrence. If you find defendant has such a loss of memory concerning the facts of this case and caused by the occurrence, you must presume that he was free of negligence, if this presumption is not overcome by the evidence.

* * *

"In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence. If, after so weighing, you are unable to decide that the presumption has been overcome, then you must find that defendant was not negligent."

[3] "(e) Forfeiture of right of way. The driver of any vehicle traveling at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder."

[4] "(f) Stop signs. Except when directed to proceed by a police officer, the driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the crosswalk on the near side of the intersection, or if there is no crosswalk shall stop at a clearly marked stop line, or if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. After having stopped, the driver shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard during the time when the driver would be moving across or within the intersection."

[5] See MCLA 257.649(e); MSA 9.2349(e).