Bielawski v. Nicks

• Decision Date: 06 September 1939
• Docket Number: No. 85.,85.
• Citation: Bielawski v. Nicks, 290 Mich. 401, 287 N.W. 560 (Mich. 1939)
• Parties: BIELAWSKI v. NICKS.
• Court: Michigan Supreme Court

290 Mich. 401

287 N.W. 560

BIELAWSKI

v.NICKS.

No. 85.

Supreme Court of Michigan.

Sept. 6, 1939.

Action for injuries received in an automobile collision by Chester Bielawski against Joseph A. Nicks.Judgment for plainiff, and defendant appeals.

Reversed, without new trial.

McALLISTER, POTTER, and CHANDLER, JJ., dissenting.

Appeal from Circuit Court, Wayne County; Adolph F. Marschner, judge.

Argued before the Entire Bench.

Walter Schweikart and Julien Winterhalter, both of Detroit, for appellant.

Munro & Donovan, of Detroit, for appellee.

BUTZEL, Chief Justice.

This court granted leave to appeal from a verdict of $500 in plaintiff's favor for personal injuries arising out of an automobile accident.Shortly after the filing of the original declaration, which alleged ordinary negligence of defendant, defendant filed a petition in bankruptcy listing plaintiff's claim in his schedule of liabilities.Thereupon, by leave of court, plaintiff amended his declaration to charge gross negligence.The question we are asked to decide is whether the jury was correctly allowed to find from the evidence that defendant Nicks was guilty of such wanton misconduct that his liability to plaintiff survived his subsequent discharge in bankruptcy.Concededly, if his conduct was not so reckless and unmindful of consequences as to constitute gross negligence, recovery for simple or ordinary negligence is barred by that discharge.

Plaintiff, Chester Bielawski, was riding as a guest passenger in an automobile owned by John Nalepa and being driven by him in a southerly direction on Jefferson Road in Macomb County.As the car crossed the intersection of Sugar Bush Road, defendant Nicks, who was coming in the opposite direction on Jefferson Road, attempted to overtake a slow moving vehicle which was also traveling north.As defendant turned to his left to pass, he was squarely in the path of Nalepa's car.The latter, realizing the danger, drove over to the shoulder of the road on his own right side, where he had a right to be.Defendant, apparently expecting Nalepa to remain on the road, and being unable to get into the proper traffic lane, drove completely across the road and struck Nalepa's car on the shoulder of the highway.Plaintiff was thrown through the windshield and sustained lacerations on his face, requiring medical aid and abstinence from work for eight days.

The evidence leaves no doubt that Nalepa was driving in a reasonably careful and prudent manner and was free from any contributory negligence.There is equally no doubt that defendant was driving carelessly.In spite of the fact that it is viewed in plaintiff's favor, the testimony does not, nowever, support the claim that defendant was guilty of wanton misconduct.Jefferson Road, a two-land thoroughfare, is about 20 feet wide.Near the point of collision it is straight and the view on both sides is clear and uninterrupted.Defendant was driving at a speed varously estimated at from 45 to 60 miles per hour.While this was undoubtedly careless, we have consistently held that mere excessive speed does not constitute gross negligence.Van Blaircum v. Campbell, 256 Mich. 527, 239 N.W. 865;Mater v. Becraft, 261 Mich. 477, 246 N.W. 191;Fink v. Dasier, 273 Mich. 416, 263 N.W. 412.When the two cars were 700 to 1200 feet apart, Nalepa testified that he saw defendant's car sway in the road, zig-zag from side to side, and straddle the center of the highway.This testimony, even if accurate, cannot of itself give rise to any theory of gross negligence.It is not uncommon to drive a car in the middle of the road where no other car is approaching.An automobile traveling 60 miles per hour on a road only twenty feet wide is hardly likely to hold a perfectly straight line.Of course, it was defendant's duty to resume a proper position on the road when the car in which plaintiff was riding had reasonably approached him; instead, he attempted to pass another car before nearing Nalepa's car.It is clear that Nicks failed to give heed to the oncoming automobile or to the situation in which he was placing himself and the occupants of Nalepa's car.Such action, while negligent, does not constitute wantonness nor wilfulness.Wyma v. Van Anrooy, 260 Mich. 295, 244 N.W. 478;LeGroh v. Bennett, 271 Mich. 526, 261 N.W. 81.

It is claimed that shortly after the accident defendant admitted that he had taken a drink sometime before.Although this was contradicted, it may be assumed to be true.The testimony of all witnesses...