Cramer v. Dye, 3
| Decision Date | 11 September 1950 |
| Docket Number | No. 3,3 |
| Citation | 328 Mich. 370,43 N.W.2d 892 |
| Parties | CRAMER v. DYE. |
| Court | Michigan Supreme Court |
Goldsmith & Shapiro, Van Dyke (Stewart A. Ricard, Van Dyke, of counsel), for appellant.
Bert V. Nunneley, Mt. Clemens (Nunneley & Nunneley, Mt. Clemens, of counsel), for appellee.
Before the Entire Bench.
Plaintiff, a minor, brought suit by next friend for damages arising out of the claimed gross negligence of the defendant in operating an automobile on the public highway in which the plaintiff was a guest passenger. On a jury trial, at the conclusion of the proofs the court granted the motion of the defendant for a directed verdict on the ground that as a matter of law the proofs failed to show the defendant guilty of wilful and wanton misconduct. Plaintiff appeals, and the only question for review is whether the court erred in holding that proofs showed the defendant guilty of ordinary negligence only.
Under the circumstances, the testimony must be viewed in the light most favorable to the plaintiff. Does it disclose a question of fact, which should have been submitted to the jury for determination as to whether the defendant was guilty of wilful and wanton misconduct? We conclude that this issue should have been submitted to the jury.
In the instant case, the plaintiff, a high school student 17 years of age, attended a dance during the Thanksgiving vacation, together with his minor brother and sister. The defendant, 21 years of age, owned an automobile and started, about midnight, to drive them home in his car after the dance. The defendant drove, two other minors were with the defendant in the front seat, and the plaintiff with two other minors occupied the rear seat. At first the defendant drove about 45 miles per hour, rolling his passengers from side to side in the automobile, and at one place came within inches of striking two mailboxes along the road, about 3 feet off the gravel. He entered a through highway without stopping, drove along it on both sides of the highway, failed to stop at a two-way intersection stop street, drove upon the wrong side of the road barely escaping a head-on crash with an oncoming car being driven on its own side of the road, drove to a tavern bar off the regular route and stopped at the tavern against the protests of his passengers. The defendant entered the bar alone, and at different times afterward at least two of his passengers went into the bar to have him come out but were unsuccessful and returned to the automobile. After about 45 minutes the defendant returned to the car and again started to take his passengers home. He drove about 50 to 55 miles per hour, on one occasion passed a car and cut in sharply barely missing a collision, one of his passengers protested, telling the defendant to take it easy because he had been in the bar and might get in trouble if he had an accident. Shortly thereafter a freight train at a railroad track crossing the highway caused the defendant to stop for about 15 minutes, after which he then drove on another paved highway and came to another railroad track on which a Diesel engine was approaching the crossing at about 10 miles per hour. The crossing was protected by flasher lights which were operating, and the engine had lights burning on each end and its bell was ringing. There were no obstructions that interfered with defendant's view of the railroad track on either side and the defendant approached the track at about 50 to 55 miles per hour. A Detroit street railway bus was standing on the highway at the crossing 10 or 15 feet from the tracks. The bus was fully lighted within, with taillights burning. The defendant drove his automobile to within about 100 feet of the bus, suddenly turned left past the standing bus, said 'This is one train we're not going to wait for,' and drove directly into the engine which was at the crossing. The collision resulted in permanent injuries to the plaintiff.
In granting defendant's motion for directed verdict, the trial court relied on Bushie v. Johnson, 1941, 296 Mich. 8, 295 N.W. 538, where many of the factual circumstances were similar to those in the case at bar. In that case a majority of the Court held that the separate acts of the driver of the motor vehicle did not establish gross negligence in a guest passenger case and affirmed the entry of a judgment non obstante veredicto after a jury verdict for the plaintiff. Earlier decisions were cited and relied upon in support of the conclusion that as a matter of law the defendant was not guilty of wilful and wanton misconduct. Obviously, such conclusion, although not so expressly stated, in effect resulted in holding that the separate acts of the driver, each of which might tend to show ordinary negligence, were not cumulatively sufficient to establish a question of fact for the jury as to whether the defendant was guilty of wilful and wanton misconduct. However, that conclusion has not been adhered to in other decisions, and we now decline to follow it to that extent.
'Evidence that motorist whose guests called his attention to odor of burning rubber, and after claiming it was...
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