Sargeson v. Yarabek, Docket No. 7173
| Decision Date | 24 June 1970 |
| Docket Number | No. 3,Docket No. 7173,3 |
| Citation | 24 Mich.App. 577,180 N.W.2d 474 |
| Parties | William SARGESON, Sr. and William Sargeson, Jr., by Shirley Sargeson, Guardian, Plaintiffs-Appellees, v. Joseph YARABEK, Sr., Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James W. Tarter, Smith, Brooker, Harvey & Cook, Bay City, for defendant-appellant.
Oscar W. Baker, Jr., Bay City, for plaintiffs-appellees.
Before McGREGOR, P.J., and DANHOF and LARNARD *, JJ.
This action was one in tort for damages arising out of an automobile accident which occurred on May 10, 1964, when William Sargeson, Jr., was a guest passenger in an automobile owned by Joseph Yarabek, Sr., and driven by Joseph Yarabek, Jr., with consent.
Defendant contends that the evidence, taken in a light most favorable to plaintiffs, was insufficient to support a verdict of gross negligence or wilful and wanton misconduct, under Michigan's guest passenger statute, C.L.S.1961, § 257.401 (Stat.Ann.1968 Rev. § 9.2101):
'* * * (N)o 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 * * *'
The elements which constitute gross negligence have been definitively set forth by the Michigan Supreme Court, in Willett v. Smith (1932), 260 Mich. 101, 104, 244 N.W. 246, 247:
'(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.'
This was subsequently quoted with approval in McLone v. Bean (1933), 263 Mich. 113, 115, 248 N.W. 566, and Tien v. Barkel (1958), 351 Mich. 276, 281, 282, 88 N.W.2d 552. Gross negligence and wilful and wanton misconduct charges are not synonymous, but such difference is not an issue here. LaCroix v. Grand Trunk Western Railroad Company (1967), 379 Mich. 417, 152 N.W.2d 656.
The Court, in Tien, supra, was cognizant of the many decisions on the subject of gross negligence and wilful and wanton misconduct, noted that many were irreconcilable, and stated that in doubtful cases, the issue of gross negligence must be submitted for jury consideration. We conclude that the facts herein warranted submission to the jury.
'Mr. Justice Butzel, writing in Rinkevich v. Coeling (1955), 344 Mich. 493, at page 499, 74 N.W.2d 12 for a then presciently enlightened half of the Court, asserted in accurate sum that each of these guest passenger cases is Sui generis in its factual circumstances.' Tien v. Barkel, Supra, 351 Mich. 282, 88 N.W.2d 555.
The accident occurred when the car in which William Sargeson, Jr., and Joseph Yarabek, Jr., were riding hit a pole standing about 3 to 5 feet from the road. Plaintiff testified that they were on a street with a block-long curve which had many trees, poles and signs, and that the car was travelling approximately 20 miles per hour in a 35-mile-an-hour zone.
Between the driver and the plaintiff passenger was a golf club, resting on the seat and the car's floorboard. The driver alleges that the club had fallen against his leg, and that he bent down, apparently with his head below the dashboard, to push it away; that when he looked up he was unable to stop in time to avoid hitting the pole. Assuming that this is a true version, there is no allegation that the removal of the club from his leg was an immediate necessity or that it hampered his driving in any way. There was also testimony that the club had fallen several times before and that the driver had become irritated thereby; that on one such occurrence, the driver cursed the plaintiff passenger and said, 'Hold on to your damned club.'
The plaintiff passenger alleges that the driver had bent down to his left and was doing something under the dashboard. This Court notes that, under either version, it is undisputed that the driver had removed his eyes from the road and had bent down, either for the purpose of doing something under the dashboard...
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