Rowe v. Kolk

• Decision Date: 28 December 1936
• Docket Number: No. 109.,109.
• Citation: 270 N.W. 788,278 Mich. 564
• Parties: ROWE v. VANDER KOLK.
• Court: Michigan Supreme Court

278 Mich. 564

270 N.W. 788

ROWE

v.VANDER KOLK.

No. 109.

Supreme Court of Michigan.

Dec. 28, 1936.

Action by Kenneth D. Rowe against Neil Vander Kolk. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Kalamazoo County; George V. weimer, judge.

Argued before the Entire Bench, except POTTER, J.

Mason, Sharpe & Stratton, of Kalamazoo, for appellant.

Jackson, Fitzgerald & Dalm, of Kalamazoo (Harry E. Rodgers, of Grand Rapids, of counsel), for appellee.

NORTH, Chief Justice.

Plaintiff, a guest in defendant's automobile, seeks to recover damages for personal injuries caused by defendant's car colliding with the rear end of a truck and semitrailer traveling in the same direction on a public highway. At the close of plaintiff's proofs defendant's motion for a directed verdict was granted. This was on the ground that plaintiff had not offered testimony that defendant was guilty of gross negligence or wanton and willful misconduct which caused the accident, and, therefore, recovery was barred by the provisions of the so-called guest act. 1 Comp.Laws 1929, § 4648. Plaintiff has appealed.

The following statement of facts, adopted almost verbatim from appellant's brief, sets forth the testimony in the light most favorable to him.:

The defendant and appellee, hereinafter called the defendant, on December 23, 1935, at approximately 9:30 p. m. drove his automobile into the rear end of a truck and semitrailer traveling south and in the same direction as defendant. The truck was lighted and was not parked on the pavement. The plaintiff was a guest in the car of defendant, and at the time of the collision was asleep in the front seat. Alfred Gunn, a mutual friend of plaintiff and defendant was in the back seat. The collision took place on U. S. 131 inside the city limits of Kalamazoo. The traffic on this highway is very heavy. There are a great number of trucks that use this highway during the night. The defendant was very familiar with the traffic conditions on this highway, and had traveled over it many times. U. S. 131, at the time here in question, was bare in spots and in spots was covered with snow and ice. Inside the city of Kalamazoo, where the collision occurred, the pavement was covered with snow and ice, except that there was a rut in the center where the traffic had worn through to the payment but the pavement was slippery. The defendant was familiar with this condition. At the time in question the weather was clear and very cold, windshields were rapidly frosting over, and it was nearly impossible to maintain space on the windshield for vision without some mechanical device for that purpose. Defendant had no such device on his car. It was necessary to hold the palm of the hand flat against the windshield so that the heat from the hand would melt the frost. The collision occurred between two street lamps inside the city; there were two lighted gasoline stations on either side of the highway about 250 feet north of where the collision happened. The locality was lighted from the street lamps and the lights on the gasoline stations. Plaintiff and defendant worked for the Lockshore Dairy Company. Plaintiff had been driving a truck throughout the day. Between 6 and 7 p. m. the plaintiff had driven to the company's farm about three miles north of Richland for milk. At that time plaintiff experienced trouble with the windshield frosting over, and found it necessary to melt the snow with his hand, but at such times slowed down the speed of his truck to a speed commensurate with safety. Defendant and Alfred Gunn rode with him to the company's farm. After returning from the farm and completing their duties at the dairy, they divided among them a quart of sloe gin. They then got into the defendant's car and drove to the California Camp, a roadhouse three or four miles north of Kalamazoo, located on U. S. 131. While there they each had two bottles of beer. They started for Kalamazoo from the California Camp about 9:25 p. m. and it was on their way back and after reaching the city limits that the collision happened. On the way home from the California Camp the defendant's windshield completely frosted over. He had to hold his hand on the windshield to melt the frost. His only vision consisted of the space so melted by the heat from his hand. He could only see through this opening to a certain extent. At the time of the collision the defendant was trying to make an opening on the windshield for vision. The truck loomed up all at once. Alfred Gunn who was in the rear seat saw the lights of the truck just before the impact. He says ‘just before we hit it,’ probably when five or ten feet away, and that defendant applied the brakes about the same time Gunn saw the truck. Defendant estimated that the truck was 15 feet away when he first saw it. At the time of the collision defendant was driving at a speed of about 40 miles per hour. On the return trip defendant had been driving 35 to 40 miles per hour. Plaintiff was asleep and knew nothing about the collision until after it happened, but before leaving the camp he had asked defendant if he could drive all right. As a result of the impact defendant's car was practically demolished, the radiator was pushed back, the hood was pushed back through the...