McLone v. Bean, 119.

• Decision Date: 16 May 1933
• Docket Number: No. 119.,119.
• Citation: 248 N.W. 566,263 Mich. 113
• Parties: McLONE v. BEAN.
• Court: Michigan Supreme Court

263 Mich. 113

248 N.W. 566

McLONE

v.BEAN.

No. 119.

Supreme Court of Michigan.

May 16, 1933.

Appeal from Circuit Court, Genesee County; James S. Parker, Judge.

Action by Kathleen McLone, by her next friend, Owen McLone, against Keith Bean. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.Carton & Gault, of Flint (Mattew Davison, Jr., of Flint, of counsel), for appellant.

Dale C. Showley and Withey & Trobert, all of Flint, for appellee.

McDONALD, Chief Justice.

This action was brought by the plaintiff to recover damages for injuries received while riding as a guest in an automobile owned and driven by the defendant. The accident occurred in the nighttime of June 12, 1932. The parties were returning from a dance. The plaintiff and her escort, Clinton Hanson, were riding in the front seat with the defendant. Their way led over a dusty gravel road used as a detour. The defendant twice passed another automobile going in the same direction. The other automobile passed him three times. Both cars were being driven at a high rate of speed in a cloud of dust. In an attempt to pass the other car a third time, defendant's automobile left the road, turned over, and seriously injured the plaintiff.

The defendant claims that he was driving on his own side of the road at a reasonable rate of speed, but that the other car which passed him created such a dense cloud of dust as to completely obscure his vision, and that in these circumstances, though he used the utmost care to keep in the road, he was unable to do so. The plaintiff claims that the accident was caused by the defendant's wanton and willful misconduct, and on that issue received a verdict and judgment. The defendant has appealed.

The first question to be considered is, Does the plaintiff's testimony show willful and wanton misconduct on the part of the defendant?

The elements necessary to constitute wanton and willful misconduct are: ‘(1) Knowledge of a situation requiring the exercise of ordinry care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’ Willett v. Smith, 260 Mich. 101, 244 N. W. 246, 247.

The testimony shows that the road on which the defendant was driving was dangerous for travel. It was used as a detour, and contained much loose gravel. It was dry and dusty. At the point of the accident, he was driving 68 or 70 miles an hour in a dense cloud of dust, so dense that he could not see the front of his own car. Another car had...