Lucas v. Lindner

I think the case presents testimony from which a jury could fairly find negligence, plus the wilfulness and wantonness required by the guest act (1 Comp. Laws 1929, § 4648). Two hours before the accident the parties turned off the main highway to a gravel road. It had been raining. The roadbed was soft and slippery. Shortly after turning off the main road they drove down a hill, at the bottom of which was a red lantern to mark a washout. Plaintiff called defendant Carl Lindner's attention to it. Shortly thereafter defendant approached a turn in the road at a speed of 30 to 35 miles per hour, too fast to make the corner, and slued into the ditch. Plaintiff had frequently protested at the rate of speed defendant was driving. After a wrecker pulled the car out plaintiff consented to return home with him only on his promise that he would drive more carefully. Instead of so doing, he drove faster than before, his car weaving on the road. When they came to the red lantern plaintiff warned defendant that they were near the corner and asked him to slow down. He said he would not take orders from any woman and went over the hill at a speed of 45 to 50 miles per hour. The hill was about 150 feet from the main road. He ran across the main road and struck trees on the other side. The above testimony was given in the plaintiff's main case and before defendants moved for direction of verdict. The protest of a passenger, of course, is not evidence of negligence, wantonness or wilfulness. However, *Page 706 it may have a bearing upon the state of mind of a driver. This is not a case of a single act of negligence. It involves continuous negligent conduct, with the danger of excessive speed on a slippery road apparent to any careful driver, brought definitely to the notice of defendant by his skidding into the ditch and the weaving of his car upon the road and persisted in, with the driver guilty of more reckless and negligent conduct as his self-esteem was hurt by the protest of the passenger. Judgment affirmed. BUTZEL and BUSHNELL, JJ., concurred with FRAD, J.