Holmes v. Wesler

• Decision Date: 02 March 1936
• Docket Number: No. 29.,29.
• Citation: Holmes v. Wesler, 274 Mich. 655, 265 N.W. 492 (Mich. 1936)
• Parties: HOLMES v. WESLER.
• Court: Michigan Supreme Court

274 Mich. 655

265 N.W. 492

HOLMES

v.WESLER.

No. 29.

Supreme Court of Michigan.

March 2, 1936.

Action by Waldo Holmes against Ernest Wesler.Verdict for the plaintiff, and from judgment for defendant non obstante veredicto, the plaintiff appeals.

Affirmed.

POTTER, J., dissenting.

Appeal from Circuit Court, Allegan County; Fred T. Miles, judge.

Argued before the Entire Bench.

Loe W. Hoffman, of Allegan (Carl E. Hoffman and Clare E. Hoffman, both of Allegan, of counsel), for appellant.

L. J. Carey and George J. Cooper, both of Detroit, for appellee.

NORTH, Chief Justice.

On April 3, 1935, about 10 p. m., plaintiff was riding as a guest passenger in the rear seat of defendant's Ford V8, 1935 model.As defendant was driving north from Kalamazoo on U. S. 131 and about four miles out of Kalamazoo, his automobile collided with a telephone pole on the westerly side of the highway and plaintiff sustained injuries.Plaintiff, seeking in this suit to recover damages, alleges that defendant in driving his automobile at a high rate of speed, approximately 70 to 75 miles per hour, around a curve, in driving at such a rate that he was unable to bring the automobile to a stop within the assured clear distance ahead, and in not applying his brakes, was guilty of gross negligence and of wanton and willful misconduct which caused plaintiff's injuries.The jury rendered a verdict for plaintiff; but upon motion, defendant had judgment non obstante veredicto.This holding was on the ground that under the requirements of the so-called Guest Act(Comp.Laws 1929, § 4648)plaintiff did not make a case for the jury, there being no testimony tending to show defendant was guilty of gross negligence or of willful or wanton misconduct.Plaintiff has appealed.

Briefly stated, the facts are that as plaintiff and defendant, together with a third party, were starting home from the city of Kalamazoo, a conversation arose which involved something of a discussion as to the relative merits of a Ford and a Chevrolet automobile, plaintiff stating that he preferred a Chevrolet.Thereupon, according to plaintiff's testimony, defendant said he would show plaintiff‘what a Ford could do in cutting the corner, cutting a curve’; and he proceeded to do so.Approximately 900 feet south of the point of collision there is a curve in the highway.Defendant was familiar with this road and knew the curve was there.In appellant's brief it is stated: ‘The curve was gradual and it is also down grade.There is nothing about the curve or the road which requires any extraordinary care to negotiate with safety, * * *’Plaintiff testified: ‘There is nothing sharp whatever about this curve; (it) is a quarter or half mile long, somewhere in there.There is quite a few curves right in there.’The highway was paved to a width of 20 feet with gravel shoulders four to six feet in width.As the parties approached the curve, defendant was driving between 70 and 75 miles per hour, and as he‘cut the corner’defendant stepped on the accelerator.The right-hand wheels of the car went off the pavement onto the gravel shoulder, which was somewhat lower than the surface of the pavement.Plaintiff testified the automobile was going 80 miles an hour at the time it went back onto the pavement; and that after it was back on the pavement it started to swerve back and forth, and its speed increased.When asked how far the car went before it collided with the telephone pole, plaintiff said: ‘Well, it did not seem like it went very far; it happened quick.’Defendant's automobile continued on on the pavement for some distance, then it again went off the pavement on the left-hand or westerly side and collided with a telephone pole with such force that the pole was broken off.The following is from plaintiff's testimony:

‘Q.What do you mean when you say that he(defendant) stepped on the accelerator and accelerated his speed after he got back on the road?* * * A.Why naturally, a man, gets into a hole like that, that is the first thing he does, steps on his accelerator, and that is what he done.* * * I say, that is the first thing they do when they get excited.* * * No one in the car said anything about speed that I know of.Everything was going all right, until things happened. * * *

‘Q.Justwhat do you blame this accident on, Mr. Holmes?A.Speedand careless driving.

‘Q.In what way was it careless driving?A.Well, I say it would be careless driving where a man has got his car out of control that can't get it back into control.

‘Q.Well, in what way was Mr. Wesler careless?A.By getting off the pavement and losing control of his car at that time.

‘Q.Well, how did he lose control of his car?A.I couldn't say; he got off the pavement, that is all; he cut the corner too short.

‘Q.He cut the corner too short and got off the pavement?A.And got off the pavement.

‘Q.And you say that is what caused the accident?A.That with combined speed.* * * And not getting the car back under control. * * *

‘Q.What should Mr. Wesler have done that he didn't do?A.Well, I don't know.He could have slowed his speed up.

‘Q.Yousay he should have slowed his speed up?A.Yes.

‘Q.His car was weaving back and forth, wasn't it?A.Certainly.

‘Q.He did use the brakes, didn't he?A.I don't know that he did.

‘Q.Youdon't know whether he did or not?A.No, I don't say he used the brakes at all. * * *

‘Q.Youdon't know whether he did or not, do you?A.I don't.I know the car didn't slow up.

‘Q.Yousay it happened as quick as the snap of your fingers.How much do you suppose a man could do in that time?A. Couldn't do much, of course.I exaggerated when I say the snap of your fingers.It went quick, naturally would.’

When defendant first cut the curve the right-hand wheels of his machine went off the pavement.Immediately after the car was brought back onto the pavement it began to swerve.After the accident it was discovered that the right-hand rear tire was flat.From the time the car began to swerve to the point of collision it was wholly out of control.Defendant testified he tried to get the car straightened up, but could not do so, and that he did not ‘bear down’ on the brakes because h...