Fink v. Dasier, 79.

• Decision Date: 12 November 1935
• Docket Number: No. 79.,79.
• Citation: 273 Mich. 416,263 N.W. 412
• Parties: FINK v. DASIER.
• Court: Michigan Supreme Court

273 Mich. 416

263 N.W. 412

FINK

v.DASIER.

No. 79.

Supreme Court of Michigan.

Nov. 12, 1935.

Action by James Fink, by his next friend, William Fink, against Elbert Dasier. Judgment for defendant, and plaintiff appeals.

Affirmed.Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Argued before the Entire Bench except EDWARD M. SHARPE, J.

Andrew J. Sawyer and Jacob F. Fahrner, both of Ann Arbor, for appellant.

Reading & Reading, of Ann Arbor, for appellee.

NORTH, Justice.

James Fink, a minor, by his next friend brought this suit under the so-called Guest Act (1 Comp. Laws 1929, § 4648) to recover damages for personal injuries which he sustained while riding in an automobile owned and driven by the defendant, Elbert Dasier. Plaintiff was given a verdict by the jury for a substantial amount of damages. Thereafter, on defendant's motion for judgment non obstante, the court entered judgment against plaintiff, and he has appealed.

Plaintiff alleged in his declaration that defendant, against the protests of plaintiff, drove the Ford automobile in which they were riding at an unreasonable and reckless rate of speed, to wit, at the rate of 70 miles per hour, and collided with a Chevrolet automobile proceeding in the same direction on the highway at the rate of about 35 miles per hour. The testimony discloses that the accident occurred between 1 and 2 o'clock on the morning of August 31, 1934, while plaintiff and defendant were driving in a southerly direction ou U. S. 23 and at a point about five miles north of the village of Milan, in Washtenaw county, Mich. At the place of accident the paved portion of the highway was 20 feet in width, and the shoulder on either side approximately 4 feet wide. It was a moonlight night, the pavement was dry, and the highway in the immediate vicinity was free from traffic other than the two machines involved in this accident. Defendant had been driving at 70 miles per hour for some considerable distance, and plaintiff testified that he told defendant ‘not to go so fast’; that plaintiff was afraid and there was ‘lots of time to get home.’ Defendant did not slacken his speed, but was driving at the rate indicated until defendant's automobile struck the car ahead, or at last to within a very few feet of the point of collision. The lights on the Chevrolet car were burning, but there is some testimony that the light on the rear may have been dimmed somewhat by dust accumulated on the lamp. Plaintiff testified that he saw the red light on the Chevrolet when it was ‘around 500 feet’ ahead of defendant's car. Later in his testimony plaintiff fixed this distance as being about 300 feet. As the cars proceeded in a southerly direction, they went up and over a slight incline. Plaintiff did not know whether Dasier had previously seen the red light ahead of him. Dasier testified he did not see it until they had passed the crest of the hill and were within 20 feet of the Chevrolet. Plaintiff fixedthis distance as about 15 feet. Defendant did not observe the car ahead of him until the cars were 15 or 20 feet apart. The Chevrolet was 3 or 4 feet westerly from the center line of the pavement. When the cars were only 3 or 4 feet apart, plaintiff called to defendant to ‘look out.’ Defendant testified that an soon as he saw the car ahead he applied his brakes and made an effort to pass to the left of the Chevrolet. Plaintiff's testimony is that defendant did not apply his brakes and his car continued in a straight line instead of veering to the left. The testimony discloses that the right-hand front portion of defendant's car struck the rear portion of the Chevrolet. Evidently the collision resulted in defendant's losing control of his car, and it went to his left off the traveled portion of the highway and collided with posts which were a part of a highway barried and connected with wire cables. Two of the posts were broken off, and the force of the collision was such that plaintiff was thrown out of the automobile. After striking the Chevrolet, defendant's car went about 240 feet before coming to a stop.

In reviewing the holding of the trial judge that defendant was entitled to judgment non obstante, the testimony contained in the record must be construed most favorably to plaintiff. Decision turns upon whether there is testimony in the record which will sustain a finding by the jury that the...