Opinion
Docket No. 103, Calendar No. 37,568.
Submitted January 10, 1934.
Decided March 6, 1934.
Appeal from Allegan; Miles (Fred T.), J. Submitted January 10, 1934. (Docket No. 103, Calendar No. 37,568.) Decided March 6, 1934.
Case by Warren L. Goss, by guardian, against Glen Overton for personal injuries received while a guest passenger in defendant's automobile. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.
Leo W. Hoffman and Clare E. Hoffman, for plaintiff.
Mason, Alexander, McCaslin Cholette, for defendant.
Late in the afternoon of April 13, 1931, Ross Overton left a country club about four miles from Allegan with three friends to return home. He was driving a car owned by his father, the defendant in this case. Warren Goss, the plaintiff, was seated in front at the right of Overton. It was a hot, dry and dusty afternoon, with practically no wind blowing. The road had been freshly graveled that morning and later worked with a truck scraper; it ran straight east and west until it made a sharp curve to the north just before entering the city limits. About 20 feet away from the center of this curve was a telephone pole.
Overton was driving the car at a speed of approximately 60 miles per hour up to the time of the accident. He passed a car proceeding in the same direction and another going the opposite way, both of which created a great deal of dust. There were other clouds of dust, varying in length and density and rendering visibility poor in many places. Just before reaching the curve, Overton drove into a "thick cloud of dust" without lessening his speed. Suddenly a Federal truck road scraper loomed up ahead. Overton swerved out of its path, was unsuccessful in his effort to negotiate the curve and hit the telephone pole at the side of the road. Plaintiff was seriously injured.
The jury found for the plaintiff and the court, in denying defendant's motion for judgment notwithstanding the verdict, held that:
"The driver had lived at Allegan all his life; he was well acquainted with the road and its condition and knew that it had recently been covered with loose gravel; he knew of the curve in the road and of course the dusty condition then prevailing was apparent and yet he drove at a rate of speed that he must have known placed his car beyond control in loose gravel and when the probable thing happened — another vehicle was overtaken, the inevitable occurred.
"To grant this motion would be to ignore the elements of wilful and wanton misconduct so often referred to by our Supreme Court being expressed most recently in McLone v. Bean, 263 Mich. 113."
It is argued that the facts of this case are distinguishable from those in McLone v. Bean, supra. It is true that in that case the driver was racing and knew another car was directly ahead of him, although not visible by reason of the swirling dust. In the instant case the driver was warned by the heaviness of the cloud of dust surrounding the curve. It meant that some moving vehicle had produced it. From his previous experience on the road Overton knew there was a car ahead of him which he could not see and, of course, he could not know how fast it was going, nor could he see through the cloud to a clear road ahead. He took no precaution by slackening his speed. Nor is this a case of mere error in judgment in negotiating a turn in the road ( Bobich v. Rogers, 258 Mich. 343), or involving arrival at a curve sooner than expected ( Elowitz v. Miller, 265 Mich. 551). Overton knew before he saw the scraper on the curve that he was in a dangerous situation, yet, disregarding the consequences, he continued to drive at a high rate of speed, and went recklessly ahead.
There is no exact standard or measurement by which we may determine where negligence ends and wilful or wanton misconduct begins, and each case must be decided on its own facts.
Aware of the bad condition of the road, the location and proximity of the curve and the risks involved in traveling over a road on which the visibility was greatly restricted, Overton continued at a speed which placed the car beyond his control. Such action constituted wilful and wanton misconduct.
The judgment is affirmed, with costs to appellee.
NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred.