Breckenridge v. Arms

• Decision Date: 21 April 1937
• Docket Number: No. 98.,98.
• Parties: BRECKENRIDGE v. ARMS.
• Court: Michigan Supreme Court

279 Mich. 384

272 N.W. 716

BRECKENRIDGE

v.ARMS.

No. 98.

Supreme Court of Michigan.

April 21, 1937.

Action by Betty Breckenridge, by Genevieve Breckenridge, her next friend, against Lyle Arms. Judgment for plaintiff, and defendant appeals.

Judgment vacated without a new trial.

FEAD, C. J., and NORTH, J., dissenting.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, Judge.

Argued before the Entire Bench.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellant.

Ronald M. Ryan, of Battle Creek, for appellee.

BUSHNELL, Justice.

The controlling question in this appeal is whether William Arms, the driver of defendant's automobile, was guilty of ‘gross negligence or wilful and wanton misconduct’ within the meaning of these words as found in the so-called guest statute, Comp. Laws 1929, § 4648.

The acts complained of and upon which plaintiff obtained a judgment of $3,000 are correctly and concisely stated in appellant's brief, but we prefer, on account of our view of their effect, to give plaintiff's version. We therefore quote from appellee's counter statement of facts:

‘Defendant's son was driving plaintiff home from the dance on a cement highway known as the Stony Lake Road, a main highway which leads into West Michigan Avenue, a main trunk line highway running east and west from the city of Battle Creek. Said driver was proceeding along said Stony Lake Highway at about 40 or 45 miles per hour on his right side of the highway. There was a slight mist and the windshield wiper was not working. The pavement was slightly wet but not slippery. When the automobile was approximately a mile from the place of accident, the driver noticed that a rubber cover on the accelerator of the car was getting loose and coming off. It was not clear off but the corner was coming out and kind of peeling down. He did not do anything about it at first. There were cars coming from both directions and the road was winding. When the auto was approximately two miles northwest from the junction of said Stony Lake Road and West Michigan Avenue the car started to go around a curve. When the car was about three-quarters of the way around the curve the driver, without stopping or slowing down, removed his right hand from the steering wheel and reached down to the accelerator on the floor of the car and attempted to repair it or to properly place it on the accelerator, but was unable to put it on. He then took his eyes off from the road ahead of him and bent his head down under the cowl and attempted to put it on. He kept his left hand on the wheel with his head bent down in order that he might see the pad on the accelerator under the cowl of the car, where he was working with his right hand. The car continued on the right side of the road for some...