Summary
In Van Blaircum v. Campbell, 256 Mich. 527, 239 N.W. 865, it was held that a speed of forty-five miles an hour, if conceded to be negligent, does not nevertheless constitute "wilfulness or wantonness."
Summary of this case from Vanderkruik v. MitchellOpinion
Docket No. 141, Calendar No. 35,972.
Submitted October 29, 1931.
Decided January 4, 1932.
Appeal from Livingston; Collins (Joseph H.), J. Submitted October 29, 1931. (Docket No. 141, Calendar No. 35,972.) Decided January 4, 1932.
Case by Anna Van Blaircum, administratrix of the estate of William E. Van Blaircum, deceased, against Andrew Campbell for personal injuries received in an automobile collision resulting in the death of plaintiff's decedent. Directed verdict and judgment for defendant. Plaintiff brings error. Affirmed.
John F. Berry, for plaintiff. Don W. Van Winkle and Shields Smith, for defendant.
Plaintiff appeals from judgment on verdict directed for defendant. Plaintiff's decedent was gratuitous passenger in an automobile owned and driven by defendant. It collided in the night on a public highway with the rear of a trailer. Defendant did not see the trailer. Perhaps he was not as watchful as he should have been. If defendant had seen the trailer and had been unable to stop in time, or if some question of lack of control were involved, the rate of speed might be important, but, as he did not see the trailer, how the speed has causal relation to the accident is not pointed out. But if speed of 45 miles per hour be conceded to be negligence it would not be gross negligence nor would it be wilfulness or wantonness.
The proximate cause of the accident was defendant's failure to see the trailer. This mere failure, or inadvertence, or lack of care is, at most, ordinary negligence, so called. There is no room on this record to find gross negligence, nor to find wilfulness or wantonness. See Gibbard v. Cursan, 225 Mich. 311, where the matter is discussed.
Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648), then effective, provides:
"That no 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 of such motor vehicle and unless such gross negligence or wilful or wanton misconduct contributed to the injury, death or loss for which the action is brought."
See Naudzius v. Lahr, 253 Mich. 216 (74 A.L.R. 1189, 30 N.C.C.A. 179).
Verdict was directed for defendant on this statute and on another ground. On the facts stated and under the statute the court did not err. Other ground for direction of verdict is unnecessary to decision.
Affirmed.
McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.