Richardson v. Grezeszak

• Decision Date: 25 November 1959
• Docket Number: No. 50,50
• Parties: Sanford RICHARDSON, Plaintiff and Appellant, v. Lawrence GREZESZAK and Leonard Grezeszak, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 648

99 N.W.2d 648

358 Mich. 206

Sanford RICHARDSON, Plaintiff and Appellant, v. Lawrence GREZESZAK and Leonard Grezeszak, jointly and severally, Defendants and Appellees.

No. 50.

Supreme Court of Michigan.

Nov. 25, 1959.

Marcus, Kelman, Loria, McCroskey & Finucan, Detroit, for plaintiff and appellant.

Smith & Brooker, Bay City, for defendants and appellees.

Before the Entire Bench.

CARR, Justice.

Plaintiff brought this action to recover damages for injuries incurred by him in a traffic accident occurring on trunkline highway M-65, in Iosco county, between 9:30 and 10 o'clock in the evening of April 7, 1956. At the time of said accident plaintiff was walking in a southerly direction on the west or right-hand side of said highway. The proofs disclose that he had been driving a truck which had become stalled in a mud hole in the road, and he was seeking assistance to help him move his vehicle. At the time in question he was accompanied by a young man named Jerry Spencer who had volunteered to attempt to find a tractor that could be used in the operation.

The highway where the accident occurred was approximately 20 feet in width with a dividing line in the center. The shoulders were composed of gravel, clay and sand, and were approximately 5 feet in width on each side of the pavement. Atmospheric conditions at the time were described by witnesses as 'misty', and there was some precipitation. The visibility was poor. The automobile involved in the accident was owned by defendant Lawrence Grezeszak and was being operated with his knowledge and consent by the other defendant. According to the testimony of the latter, he was driving approximately 35 miles per hour and could see ahead for a distance of about 50 feet. It was his claim that when he discovered plaintiff on the highway he was unable to avoid striking him.

The testimony was in dispute as to where plaintiff was walking at the time he was struck by the automobile. On behalf of defendants testimony was offered to the effect that plaintiff was on the pavement, the driver placing him approximately 3 feet from the west edge, and another witness, who apparently was disinterested, stating that he was approximately 8 inches to a foot on the pavement. Plaintiff claimed that he was on the shoulder of the road, approximately 3 feet off the pavement. He was corroborated in his claim that he was on the shoulder by his witness Spencer, who was walking slightly in advance of plaintiff and to his right. The witness did not claim that he looked at plaintiff immediately prior to the accident but based his opinion as to plaintiff's location on the fact that he could hear him walking on gravel.

The trial judge charged the jury that defendant driver was guilty of negligence as a matter of law because he was proceeding at a rate of speed that did not permit him to stop within the assured clear distance ahead.* The court further charged in substance that if plaintiff was walking on the pavement at the time he was struck by defendants' automobile he could not recover, such charge being based on section 655 of the motor vehicle code of 1949 (C.L.S.1956, § 257.655 [Stat.Ann.1952 Rev. § 9.2355]). Said section reads as follows:

'Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.'

The proofs disclosed that plaintiff was struck on his left arm and thrown to the ground, the arm and his right shoulder being injured. Apparently on the theory that under the proofs plaintiff might have been walking on the shoulder of the road so close to the edge of the pavement that his arm projected over it, the trial judge left to the jury the question as to plaintiff's contributory negligence in the event that it was found that he was not actually walking on the pavement. A verdict was returned in favor of the defendants, plaintiff's motion for a new trial was denied, and this appeal has resulted.

Counsel representing plaintiff on the trial requested that the claimed issue of wilful and wanton misconduct on the part of the driver of the automobile be submitted to the jury. The request was refused and such refusal is claimed to have been erroneous. The trial judge based his ruling, as is indicated by the opinion denying the motion for a new trial, on the lack of evidence to support the instruction as requested. On behalf of appellees it is contended that the trial judge ruled correctly in refusing to submit the issue of wilful and wanton misconduct to the jury because of lack of proofs indicating that the driver of defendants' automobile was guilty of any such conduct.

This Court, and other courts as well, has repeatedly pointed out that wilful and wanton misconduct is different in nature from negligence. In Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398, 401, the Court after discussing certain principles applicable to negligence, including subsequent negligence, said:

'If one willfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by willfulness, rather than by inadvertence, it transcends negligence--is different in kind. Where recovery is sought on the theory that the injury was caused by willful, wanton, or reckless misconduct of a defendant, as distinguished from negligence, there is no more reason for permitting the defense of contributory negligence than in a case of assault and battery. True, such misconduct in this state and elsewhere usually has been called negligence, the word being qualified by such adjectives as gross, wanton, reckless, or willful, but this is incorrect and has a tendency to mislead. We quote from a well-written opinion (Atchison, T. & S. F. R. Co. v. Baker, 79 Kan. 183, 98 P. 804, 21 L.R.A.,N.S., 427:

"Although what is really reckless and wanton misconduct is sometimes spoken of as gross negligence, the expression is everywhere recognized as inaccurate and unfortunate, because it seems to imply a difference only of degree, whereas the whole doctrine that contributory negligence is no defense where the injury is the result of recklessness and wantonness is based upon the theory of a difference in kind. For the same reason, the phrase 'reckless and wanton negligence' has a misleading tendency. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence. His conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that, instead of affirmatively wishing to injure another he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.'

'See Labarge v. Pere Marquette Railroad Co., supra [134 Mich. 139, 95 N.W. 1073]; note, 21 L.R.A.,N.S., 427; 69 L.R.A. 516; Parker v. Pennsylvania Co., 134 Ind. 673, 34 N.E. 504, 23 L.R.A. 552; Galveston, H. & S. A. Ry. Co. v. Zantzinger, 92 Tex. 365, 48 S.W. 563, 44 L.R.A. 553; 20 R.C.L. p. 144; Higbee Co. v. Jackson, 101 Ohio St. 75, 128 N.E. 61, 14 A.L.R. 131; Baldwin on Personal Injuries (2d ed.), p. 129; Cooley on Torts (2d ed.), p. 674, and cases cited; 29 Cyc. p. 509; Battishill v. Humphreys, 64 Mich. 514, 38 N.W. 581; Schindler v. [Milwaukee, etc., Railway] Co., 87 Mich. 400, 49 N.W. 670; E. B. Muller & Co. v. Hines, 216 Mich. 664, 185 N.W. 738; Malmsten v. Marquette, H. & O. Railroad Co., 49 Mich. 94, 13 N.W. 373; Vought v. Michigan United Traction Co., 194 Mich. 343, 160 N.W. 631; Wexel v. Grand Rapids & I. Railway Co., 190 Mich. 469, 157 N.W. 15; Redson v. Michigan Cent. Railroad Co., 120 Mich. 671, 79 N.W. 939; Bouwmeester v. Grand Rapids & I. Railroad Co., 63 Mich. 557, 30 N.W. 337; Simon v. Detroit United Railway, 196 Mich. 586, 162 N.W. 1012; Matta v. Chicago & W. M. Railway Co., 69 Mich. 109, 37 N.W. 54; Walter v. Detroit, J. & C. Railway Co., 191 Mich. 181, 157 N.W. 414; Putt v. Grand Rapids & I. Railway Co., 171 Mich. 216, 137 N.W. 132; Montgomery v. Lansing City Electric Railway Co., 103 Mich. 46, 61 N.W. 543, 29 L.R.A. 287; Freeman v. Duluth, S. S. & A. Railway Co., 74 Mich. 86, 41 N.W. 872, 3 L.R.A. 594.

'According to note, 69 L.R.A. 516, and text, 20 R.C.L. p. 145, the elements necessary to characterize the injury in the case at bar as willfully inflicted are:

"(1) Knowledge of a situation requiring the exercise of ordinary 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."

There was testimony in the Gibbard case that the defendants' truck struck and fatally injured plaintiff's intestate without any reasonable warning of its approach although the deceased, a minor 13 years of age, was in plain view of the driver for at least 80 rods and was actually seen when the truck was distant 10 rods. Under the facts indicated by the proofs it was held that the trial court was not in error in submitting the issue to the jury. The factual situation involved in the case was materially different from that in the case at bar. Here the defendant driver did not see plaintiff until it was too late to avoid him. While the driver was guilty of negligence in violating the statutory speed regulation, and the jury was so charged, the conclusion does not follow that he was guilty of wilful and wanton misconduct. The essential...