Schneider v. Draper
| Decision Date | 16 June 1936 |
| Docket Number | No. 68.,68. |
| Citation | 267 N.W. 831,276 Mich. 259 |
| Parties | SCHNEIDER v. DRAPER et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Frederick B. Schneider against William D. Draper and Duane W. Draper. From judgment for plaintiff, defendants appeal.
Affirmed.Appeal from Circuit Court, Saginaw County; William H. Martin, judge.
Argued before the Entire Bench.
Crane & Crane, of Saginaw (Frank A. Rockwith, of Saginaw, of counsel), for appellants.
O'Keefe & O'Keefe, of Saginaw (Picard & Heilman, of Saginaw, of counsel), for appellee.
Plaintiff had judgment. The first question is whether the court should have directed a verdict for defendants or entered judgment non obstante.
October 17, 1932, William Draper, one month under 15 years of age, driving his father's car, started from the Saginaw High School to go to the athletic field, taking with him four fellow students, candidates for the high school football team, one of whom was manager, and at least two of whom were two years older than himself. Just after he started, two other candidates, plaintiff's decedent (16 years old and weighing 160 pounds), and another boy (150 pounds), jumped on the right running board of the car. Draper made no objection. He drove west on Millard street about half a block to Sheridan avenue, into which he turned south at a right angle and at a speed of five to ten miles per hour. Because of the weight of the boys on the running board, the front right tire scraped the fender and, as Draper testified, he noticed the car was harder to turn, but it did not interfere with his driving. Otherwise Draper noticed no effect of the outside load. Going down Sheridan avenue the tires scraped slightly when the car ran over a bump.
Sheridan avenue is not straight. It runs south and a little esterly from the Millard street corner two blocks to Hoyt street; then south and westerly five blocks to Holden street, where it turns practically due south at the slight angle of 24 degrees. About 90 feet south of the intersection of Holden street and Sheridan avenue was a telephone pole, set 19 inches west of the curb line of Sheridan avenue, and 52 feet south of it was another telephone pole. One driving down Sheridan avenue would travel directly toward the first pole. Sheridan avenue is 26 feet wide at Holden street and 30 feet wide at Martha street, a block north.
The testimony, taken most favorably to plaintiff, is that Draper stopped at Hoyt street for traffic; in the second block south of Hoyt street he ‘dodged’ around a parked car and one of his passengers exclaimed in alarm; from Emerson street, one block south of Hoyt, Draper drove his car zigzagging back and forth from curb to curb at a speed of 45 miles per hour; he was so driving when he was ‘just about’ at Holden street; he was headed for the first pole; he did not begin to turn to the left until he was about 15 feet from the first telephone pole, which was too late; he turned partially but, because of his speed, sharpness of the turn or the weight of the boys on the running board pressing the right fender against the wheel, or a combination of such causes, Draper could not make the full turn, although the football manager also took hold of the wheel to aid him; his car touched the first telephone pole, ran partly over the curb, gouged a two-inch slab from the second pole, and stopped a few feet farther on; between the two poles the boys were thrown off the running board and killed.
The question is whether there was evidence to permit a jury to find Draper guilty of gross negligence or wanton and willful misconduct under the guest act.
The reduction into elements of ‘wanton and wilful misconduct’ in Willett v. Smith, 260 Mich. 101, 244 N.W. 246, is stressed and all our decisions arising under the act have been digested by counsel. The difficulty in all these cases is that any definition or attempted dissection of the phrase is only relative, not determinative or exclusive, and slight differences in facts produce different results. The meaning of the term ‘wanton and wilful misconduct’ seems to me so plain that general amplification would tend to confuse rather than clarify it.
Although he knew it made the car harder to steer, the scraping of the fender and wheel at Millard street did not convey...
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