Hunter v. Baldwin, 112.

• Decision Date: 21 June 1934
• Docket Number: No. 112.,112.
• Parties: HUNTER v. BALDWIN et al.
• Court: Michigan Supreme Court

268 Mich. 106

255 N.W. 431

HUNTER

v.BALDWIN et al.

No. 112.

Supreme Court of Michigan.

June 21, 1934.

Appeal from Circuit Court, Tuscola County; Henry H. Smith, Judge.

Action by Walter N. Hunter against Eber Baldwin and Anna Baldwin. Judgment for plaintiff, and last-named defendant appeals.

Affirmed.

Argued before the Entire Bench, except POTTER, J.

BUTZEL and WIEST, JJ., dissenting.

Elbern Parsons, of Holland, for appellant.

Geo. W. DesJardins and Eugene E. Johnson, both of Lapeer, for appellee.

EDWARD M. SHARPE, Justice.

September 9, 1930, the plaintiff, a farmer of the age of 40 years, was driven from his home to the village of Kingston, a distance of about three and a half miles, by the defendants in a Chevrolet auto owned by the defendant Anna Baldwin and driven by her stepson, defendant Eber Baldwin. While in town all parties attended to some business which took two or three hours. As they were about to return home, the defendant Anna Baldwin was seated in the rear seat of the car and the defendant Eber Baldwin was seated behind the steering wheel. Plaintiff was standing beside the car. When the motor failed to start by the use of the starter, the defendant Eber Baldwin gave plaintiff the hand crank, requesting him to crank the engine. Plaintiff inserted the crank in its proper place, but in doing so it was necessary for plaintiff to put one foot and leg inside the front bumper. The car was in gear, and, upon being cranked, immediately started forward up over the curb where it was parked and pushed plaintiff against a building and under the car, causing him serious personal injuries.

Plaintiff sued both the owner and the driver of the car. A default judgment was taken as to defendant Eber Baldwin. Upon the trial, a judgment was found for the plaintiff in the amount of $1,909. Defendant Anna Baldwin appeals.

Plaintiff claims that he was not familiar with gear shift cars such as the one in question and does not know how they operate; that, as a result of the injuries sustained through defendants' negligence, he has a permanent disability of 30 per cent. Defendant claims that plaintiff was guilty of contributory negligence in not ascertaining that the gear shift of the car was in neutral; that the plaintiff was transported as a guest within the meaning of section 4648, Comp. Laws 1929, commonly known as the Guest Act; that the court erred in permitting the plaintiff to testify as to his loss of earnings, since plaintiff was engaged in farming on his own account.

When defendant Eber Baldwin handed the crank to plaintiff and asked him to crank the car, he knew the position plaintiff was in and he also knew that, if the car was left in gear when the engine started, the car would move and likely injure plaintiff. Defendant Eber Baldwin owed plaintiff a duty that he failed to observe. The plaintiff had a right to rely on the driver of the car having his car in control and was not called upon to anticipate that the driver would have his car in gear while it was being cranked.‘Contributory negligence is not imputable to any person for failing to look out for danger when under the surrounding circumstances he had no reason to suspect that danger was to be apprehended.’ Corey v. Hartel, 216 Mich. 675, at page, 679, 185 N. W. 748, 749.

The Guest Act (section 4648, Comp. Laws 1929) reads: ‘Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’

This statute, being in derogation of the common law, must be strictly construed. Rogers v. Kuhnreich, 247 Mich. 204, 225 N. W. 622.

Several other states have guest acts similar to that in Michigan which the courts of those states have been called upon to construe. It has been held that it is not necessary that the car be actually in motion in order for one to be a guest therein. Under the Connecticut statute, which is identical with that of Michigan, a plaintiff who had entered the car at the invitation of the driver was held to be a guest so as to prevent recovery for injury to plaintiff's fingers caused by the driver slamming the car door before starting the engine. Nemoitin v. Berger, 111 Conn. 88, 149 A. 233.

On the other hand, not everyone riding in a car without payment is a guest. A prospective purchaser of the automobile is not a guest within the Guest Act. Crawford v. Foster, 110 Cal. App. 81, 293 P. 841. Accord, Bookhart v. Greenlease-Lied Motor Co., 215 Iowa, 8, 244 N. W. 721. Likewise, a child riding in a school bus is not a guest. Smith v. Fall River Joint Union High School District, 118 Cal. App. 673, 5 P.(2d) 930. In Kruy v. Smith, 108 Conn. 628, 144 A. 304, it was held that whether plaintiff, who was being transported by defendant to defendant's house to work as a laundress, was a guest was a question for the jury, and a directed verdict for defendant was reversed. Where plaintiff had been hired by defendant's agent...