Boyle v. Moseley, 84

• Decision Date: 05 April 1932
• Docket Number: No. 84,Oct. Term, 1931.,84
• Parties: BOYLE v. MOSELEY.
• Court: Michigan Supreme Court

258 Mich. 347

241 N.W. 849

BOYLE

v.MOSELEY.

No. 84, Oct. Term, 1931.

Supreme Court of Michigan.

April 5, 1932.

Appeal from Circuit Court, Delta County; Frank A. Bell, Judge.

Action by Anne Boyle, Guardian of Beatrice Boyle, a minor, against Floyd C. Moseley. Judgment was entered for defendant, notwithstanding the verdict, and plaintiff appeals.

Affirmed by operation of law.

Argued before the Entire Bench.H. J. Rushton and Denis McGinn, both of Escanaba, for appellant.

John J. O'Hara, of Menominee (James E. Coleman, of Milwaukee, of counsel), for appellee.

NORTH, J.

After verdict for plaintiff the trial judge on defendant's motion entered judgment non obstante. The sole question presented on plaintiff's appeal is whether in so doing error was committed. Plaintiff's ward, Beatrice Boyle, hereinafter called the plaintiff, was injured while riding as a guest in the automobile driven by defendant. If there was testimony tending to support plaintiff's claim that defendant was guilty of gross negligence or of wanton or willful misconduct which caused her injury, entry of judgment non obstante was erroneous. In passing upon the question presented the testimony must be considered most favorable to plaintiff. Thus viewed, the testimony shows that about 9 o'clock in the evening of October 30, 1929, defendant was driving a Chevrolet coach in a southerly direction on United States 2. A young lady occupied the front seat with defendant, while plaintiff and another young man companion were in the rear seat. Defendant met a car ‘that had blinding lights,’ so blinding he testified that ‘I couldn't see where I was driving after I got up close to the car.’ As these automobiles approached each other they were going thirty-five to forty-five miles per hour. Defendant testified: ‘I was driving about forty-five miles an hour, I was in a hurry to get to the party.’ After defendant got within forty feet of the approaching vehicle he could not see where he was going. He testified the glare of the lights of the passing car was about the worst he had ever seen, and another witness who was passed by the same vehicle testified that on account of the glare he stopped at the side of the road, and that he was blinded by the passing lights for sixty seconds. As the approaching car neared defendant it swerved somewhat in his direction and he thereupon turned his car to the right so that its right-hand wheels left the pavement and were running in the gravel; and he testified that he was afraid at that time to apply his brakes for fear he would go in the ditch, obviously because of the rate of speed at which he was then driving. He had four-wheel brakes and could have stopped the car had he applied them. He had seen the other car approaching when it was nearly a half a mile away and noticed it had bright lights, but he continued his speed at the rate of thirty-five or forty miles per hour until the approaching lights became so bright that defendant could not see the side of the road. He testified: ‘I had my foot on the brakes all during that time; and after he got past there were a few seconds that I was blinded by the lights and it was during that time I hit the post and turned over.’ The post referred to was a mail box standard erected in the highway. There is testimony that plaintiff's car ran a hundred twenty feet after passing the other car before striking this post, that it then went into the ditch, overturned and injured plaintiff, that defendant did not ‘slacken (his speed) at all,’ that his car left the surface of the road and swayed back and forth several times. Further, that as defendant approached the point of accident he was driving with one hand and that his right hand rested on his companion's knee. In the light of the foregoing and from other like testimony in the record we think it cannot be said as a matter of law that there was no proof of gross negligence or of wanton or willful misconduct sufficient to sustain recovery by plaintiff under the so-called Guest Act (Comp. Laws 1929, § 4648). The terms gross negligence and willful and wanton misconduct have no different meaning than that ascribed to them prior to the enactment of the above-cited statute. In Gibbard v. Cursan, 225 Mich. 311, 196 N. W. 398, 401, Mr. Justice Clark, speaking for the court, said: ‘If one willfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by willfulness, rather than by inadvertence, it transcends negligence-is different in kind.’

Defendant's claim that his failure to apply his brakes or in any way slacken the speed of his car was due to his fear that in so doing he might cause his automobile to leave the road and go into the ditch may or may not have been believed by the jury. Surely, if it was not believed, it could hardly be questioned that defendant's failure to in any manner slacken the speed of his car was negligence of the grossest sort and constituted willful and wanton misconduct on his part. The law imputes intention to do harm where there is a reckless disregard for the safety of others. See note 69 L. R. A. 516. For cases arising out of somewhat similar circumstances and involving the question of gross negligence and willful misconduct, see Rog v. Eltis, 269 Mass. 466, 169 N. E. 413;Blood v. Adams, 269 Mass. 480, 169 N. E. 412;Kirby v. Keating, 271 Mass. 390, 171 N. E. 671.

Appellee urges that the swerving of the approaching car in his direction when about forty feet away resulted in its lights becoming more blinding to him, and thereby he was confronted with a sudden and unexpected danger, and that therefore his subsequent acts cannot be held to constitute gross negligence or willful and wanton misconduct. This would depend upon whether the jury believed defendant's testimony as to the lights becoming suddenly more blinding and also upon whether defendant's perilous position was produced by his own negligence. Walker v. Rebeuhr, 255 Mich. 204, 237 N. W. 389. An issue of fact still remained.

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