Manser v. Eder

• Decision Date: 16 May 1933
• Docket Number: No. 2.,2.
• Citation: 248 N.W. 563,263 Mich. 107
• Parties: MANSER v. EDER.
• Court: Michigan Supreme Court

263 Mich. 107

248 N.W. 563

MANSER

v.EDER.

No. 2.

Supreme Court of Michigan.

May 16, 1933.

Appeal from Circuit Court, Wayne County; Kelly S. Searl, Judge.

Action by Cecilia Manser, now Cecilia Jerinkitz, against Burton P. Eder. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before the Entire Bench.

POTTER and CLARK, JJ., dissenting.Charles C. Conklin and Frank P. Darin, both of Detroit, and Wm. E. Robb and Don W. Van Winkle, both of Howell, for appellant.

Bernstein & Bernstein, of Detroit, for appellee.

BUTZEL, Justice.

Plaintiff, Cecilia Manser, now Cecilia Jerinkitz, together with a young lady companion, were the guest passengers of Dr. Burton P. Eder, a dentist of Detroit, Mich., and defendant herein, on June 14, 1931. Defendant had worked steadily from 9:00 a. m. to 9:00 p. m. at his office and it was late in the evening before the party started for a pleasure ride in defendant's Ford coupé. They drove out of Detroit on Woodward avenue, stopped at a restaurant in the suburbs for supper, and then proceeded as far as Pontiac, Mich. It was about 1:00 a. m. Sunday when they began their return trip. As they drove through Highland Park, defendant fell asleep at the wheel and narrowly escaped running into a safety zone near the Ford plant. Plaintiff became very much alarmed, aroused defendant, and informed him that he was driving in a dangerous manner. An argument ensued, in the course of which plaintiff told defendant that she was frightened and insisted that he let her out of the car. Defendant stated that he would not permit the young ladies to leave the car and find their way home alone at that hour of the night. He declared that he was no longer sleepy and would get them home safely. Shortly thereafter, defendant went to sleep again and drove his car with great force into a post of a safety zone near the intersection of Woodward and Elmhurst avenues, in Detroit. As a result of the collision, the car was badly damaged and plaintiff sustained severe injuries.

The trial judge, who heard the case without a jury, awarded plaintiff a judgment of $1,250 on the ground that defendant was guilty of gross negligence and wanton and willful misconduct. On appeal, it is claimed that, at most, defendant's conduct constituted only ordinary negligence, and that plaintiff, a guest passenger, was barred from recovery under section 4648, C. L. 1929, in the absence of any adequate showing of gross negligence or willful and wanton misconduct.

There is no question but that one is negligent in driving his car under the influence of extreme fatigue and sleep. As was said by Mr. Justice Wiest in Devlin v. Morse, 254 Mich. 113, 235 N. W. 812, a case in which the accident occurred before the enactment of the Guest Act: ‘It was not necessary for the court below to find defendant guility of gross and wanton negligence. Was defendant guilty of negligence? Defendant had been up all night, had taxed his powers of endurance with drink and by loss of sleep, and it was actionable negligence, under the circumstances, for him to continue driving until overcome by ‘tired nature's sweet restorer.’ * * * The approach of sleep is indicated by premonitory symptoms.'

We also quote from Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785, as follows: ‘Sleep in such a situation does not ordinarily come upon one unawares, and by watching for indications of its approach, or heeding circumstances which are likely to bring it about, one may either ward it off or cease an activity capable of danger to himself or to others. There are few ordinary agencies so fraught with danger to life and property as an automobile proceeding upon the highway freed of the direction of a conscious mind, and because this is so, reasonable care to avoid such a danger requires very great care. * * * In an ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires without having been negligent.’ See, also, People v. Robinson, 253 Mich. 507, 235 N. W. 236;Whiddon v. Malone, 220 Ala. 220, 124 So. 516.

Further, under the circumstances...