Bobich v. Rogers

• Decision Date: 04 April 1932
• Docket Number: No. 49.,49.
• Parties: BOBICH v. ROGERS.
• Court: Michigan Supreme Court

258 Mich. 343

241 N.W. 854

BOBICH

v.ROGERS.

No. 49.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Gogebic County; George O. Driscoll, Judge.

Suit by Steve Bobich against Robert Rogers. Judgment for plaintiff, and defendant appeals.

Reversed, and a new trial granted.

Argued before the Entire Bench.Charles M. Humphrey and Ivan D. Wright, both of Ironwood, for appellant.

Jones & Patek, of Ironwood, for appellee.

WIEST, J.

Plaintiff was a guest riding in an automobile owned and driven by defendant. The automobile, at a railroad crossing, left the roadway and overturned. Plaintiff received injuries and had verdict and judgment. The accident occurred at the hamlet of Matchwood in Ontonagon county, in the daytime. The roadway upon which defendant was driving approached the hamlet from the west and, at the hamlet, made a right-angle turn to the south and crossed the railroad track thirty-five feet distant from the south line of the westward extension of the road. The railroad crossing was planked.

Right of plaintiff to have recovery rests upon whether defendant in operating his automobile was guilty of ‘gross negligence or willful and wanton misconduct.’ Act No. 19, Public Acts 1929. In this jurisdiction there is no such thing as gross negligence in the sense of great or much negligence. Union Trust Co. v. Detroit, etc., R. Co., 239 Mich. 97, 214 N. W. 166, 66 A. L. R. 1515. The term ‘gross negligence,’ as employed in this statute, does not mean something of less degree than willful and wanton misconduct. See Oxenger v. Ward, 256 Mich. 499, 240 N. W. 55. Plaintiff recovered on the claim that defendant drove his automobile at such a high rate of speed that he was unable to make a sharp turn without losing control of his car, and, as a consequence, the car left the roadway and overturned.

Plaintiff testified that, before reaching the turn, he told defendant he was driving too fast, and ‘If you don't cut out the speed, stop, I want to get out’; that defendant said ‘he was driving a car faster than that and he make that curve,’ and as the car was close to the curve he said, ‘Why don't you stop while I get off?’

Defendant testified that he made the turn and, at a railroad crossing thirty-five feet distant, something happened to his car and he lost control of it. After the accident it was found there was one flat tire. The fact that an accident happened was, of course, no evidence of negligence. But it is said that defendant, after having his attention called to the speed of the car, willfully and wantonly attempted to make the turn without reducing the speed. The driver of an automobile is not at his peril required to comply with the request of a guest relative to speed, nor does noncompliance in and of itself evidence willfulness or wantonness.

Whether a turn of the road can be made with reasonable safety at any particular speed depends, of course, upon the character and condition of the road and the skill of the driver. We cannot draw a line beyond which mere speed in making a turn departs from negligence and becomes willful and wanton misconduct. Conceding that defendant was negligent in making the turn at high speed it...