Greimel v. Fischer, 85.

• Decision Date: 06 April 1943
• Docket Number: No. 85.,85.
• Citation: 8 N.W.2d 906,305 Mich. 45
• Parties: GREIMEL v. FISCHER.
• Court: Michigan Supreme Court

305 Mich. 45

8 N.W.2d 906

GREIMEL

v.FISCHER.

No. 85.

Supreme Court of Michigan.

April 6, 1943.

Action by Joseph Greimel against Leo Fischer for personal injuries sustained by plaintiff while riding as a guest passenger in defendant's automobile. Judgment for plaintiff, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Lester S. Moll, judge.

Before the Entire Bench.

Charles A. Lorenzo, of Detroit, for plaintiff and appellee.

Howard Farrell, of Detroit, for defendant and appellant.

CHANDLER, Justice.

On December 1, 1940, plaintiff was injured while riding as a guest passenger in defendant Fischer's automobile, which resulted in this action to recover damages therefor. Trial by jury gave plaintiff judgment and defendant's motions for judgment non obstante veredicto and a new trial were denied.

Two days prior to the accident, plaintiff had accompanied defendant, with the latter's small son, on a hunting trip near Alpena. On the return trip, the 20-foot pavement was covered with ice and very slippery. Defendant was driving his car in an easterly direction and had reached a point near the city limits of Alpena when the accident occurred. According to the testimony, viewed most favorably to plaintiff, the car came over the crest of a hill in the highway; at the foot of the grade, and some 1,100 feet from the top of the incline, a car was standing crosswise with the road, the driver thereof trying to make a turn on to a road leading south but having difficulty in so doing because of the icy condition of the road surface. When defendant came over the hill, he was driving at a speed of 45 to 50 miles per hour and, according to plaintiff's testimony, the following transpired:

‘Q. What was said if anything either by you or Mr. Fischer at the time when you got to the top of the hill? A. When we came to the top of the hill and could get a clear view about the road I seen the car blocking the highway, so I said, ‘There is a car down there, Leo’.

‘Q. Who said that? A. I said that.

‘Q. What did you say to him? A. I said to Mr. Fischer, there is a car down there blocking our road. So he says, I seen it, what is it doing there, why don't they get off, watch me, I'll get him off. So by saying so he increased his speed. When he did that, I said, you musn't do that, Leo, stop the car.

‘Q. How much did he increase his speed? A. I would say about 10 miles an hour, 15.

‘Q. When you said to Mr. Fischer what you testified to about stopping the car what about was the approximate rate of speed of his car then? A. He was doing about 45 or 50.

‘Q. When was he doing about 45 or 50? A. When we were coming over the hill, we started down the grade, he was doing about 45, and when I mentioned that he should stop the car he was already increasing his speed to about 55, 60 when-it was last spoken about, when we were within about 100 feet or 150 feet the car started to sway, I don't know why, but Mr. Fischer must have changed his mind about what we were doing, I felt the car coming sideways, swaying, all I recall, we were-we hit the car, and our rear end of the car hit the other car on the right-hand side, and then we started to going out, and that is all I know.'

‘Q. Now then, tell us what more you said back and forth as you were going down the hill, if anything? A. He made one remark before we started to hit the car, he said to me, what am I going to do now?'

Defendant testified that he could have stopped the car, considering the speed at which he was traveling and the condition of the highway, within a distance of 500 feet, and that he saw the stalled car as soon as he came over the top of the hill.

The testimony also shows that because of the position of the stalled car at the foot of the hill, it was impossible for defendant's car to pass on either side of it.

To enable plaintiff, a guest passenger, to recover, it was necessary for him to establish that the accident occurred as a result of defendant's gross negligence or wilful and wanton misconduct. 2 Comp.Laws 1929, Sec. 4648; Stat.Ann. Sec. 9.1446.

In previous cases, we have attempted to define the elements that must be present to establish wilful or wanton misconduct within the provisions of the statute (Willett v. Smith, 260 Mich. 101,...