Schlacter v. Harbin

• Decision Date: 12 November 1935
• Docket Number: No. 115.,115.
• Citation: 263 N.W. 431,273 Mich. 465
• Parties: SCHLACTER v. HARBIN.
• Court: Michigan Supreme Court

273 Mich. 465

263 N.W. 431

SCHLACTER

v.HARBIN.

No. 115.

Supreme Court of Michigan.

Nov. 12, 1935.

Action by Clarence Schlacter against Floyd S. Harbin. From a judgment non obstante in favor of the defendant, the plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Genesee County; Paul V. Gadola, judge.

Argued before the Entire Bench.

Doran & Pearson, of Flint (Carton, Gault & Davison, of Flint, of counsel), for appellant.

Rodgers & Dunn, of Grand Rapids, for appellee.

BUTZEL, Justice.

Plaintiff, a guest in a Ford roadster owned and driven by defendant, rode with two other passengers from Flint to Pontiac. After spending the evening there, they prepared to return to Flint between 1:30 and 2 a. m. on October 1, 1933. On going to defendant's car, plaintiff found it occupied by six people, defendant and three others on the front seat of the roadster and two more on the rumble seat in the rear. Thus deprived of a return passage, plaintiff first succeeded in getting aboard a milk truck, but later accepted defendant's invitation to ride on the running board of his car. Standing on the right side of the car, at times he put his head through the open window into the car to avoid the rain. When the car began the return trip, it was raining intermittently, the pavement was wet and slippery, and there was a heavy mist so that visibility was limited to fifteen or twenty feet in front of the car. In addition to this, the automatic windshield wiper was not working and defendant was obliged to operate it with his hand in order to see ahead. Defendant's view to the right obviously would be somewhat cut off with three passengers seated at his side and plaintiff further being at or near the right side window. The car proceeded along Huron street at a speed of forty miles per hour and then turned into Saginaw street when it skidded and plaintiff admonished the defendant to be more careful, that he was on the outside of the car. In traveling on Saginaw street between Huron street and Oakland avenue, defendant drove his car along the car tracks. The car slued again twice-once as the tires caught in the rails. Defendant's sister also warned him to be careful. However, after the car turned up Oakland avenue, it was driven in a straight direction. The record shows that defendant believed he had his car under control. The car had proceeded but a short distance along Oakland avenue when it struck or grazed another car parked along the right side of the pavement in front of a parking lot and under an overhead lamp. Defendant testified that he did not see the car, although he was operating the windshield wiper with his hand and the parked car was plainly visible. Evidently defendant was looking ahead, but not to the side. After the accident, defendant's car proceeded for about one hundred feet before it was noticed that plaintiff was no longer standing on the running board. Defendant backed up his car and found plaintiff lying on the pavement and severely injured.

In the lower court, the jury rendered a verdict for plaintiff. The trial judge, however, entered judgment in favor of defendant non obstante.

As defendant produced no testimony, the testimony must be treated in the most favorable light to the plaintiff. Defendant was undoubtedly guilty of negligence in driving at forty miles an hour, an excessive rate of speed, within the city of Pontiac and particularly so when atmospheric and road surface conditions were bad, the wiper was not working automatically, and three others were occupying...