Crowley v. Upleger

*542 Fead, J. This is an action for personal injuries under the guest act, so-called, 1 Comp. Laws 1929, § 4648. The defendant had judgment on trial before the court. While defendant was driving his car on a gravel road near Roscommon, he came to a place where there was loose gravel or clay bottom or both, lost control of his car, it began to skid and weave back and forth on the road, finally turned over and seriously injured plaintiff, a guest passenger. Plaintiff’s claim of gross negligence or wilful and wanton misconduct is that while the car was out of control defendant became angry, swore at it, turned the steering wheel abruptly to the left, applied the brakes and the car turned over. Defendant denies swearing or turning the wheel abruptly. He said he was devoting his efforts to regaining control of the car, that he was unable to do so, it finally swung to the right half way around and turned over. A witness, Mrs. Ward, who said she was in a garden near the accident, corroborated his testimony that the car swung to the right and turned over. The court held on the facts that plaintiff had failed to produce the preponderance of the evidence. In this we concur. Plaintiff’s own testimony is at least as consistent with the idea of a determined effort by defendant to regain control of the car as it is' with the claim that his act was reckless or wanton; and it does not appear that defendant could have regained control of the car -by acting differently. On motion for new trial plaintiff and a witness made affidavits that, long before the trial, defendant had told them that Mrs. Ward told him she was in the house at the time of the accident, and it is claimed that she could not see the road from the *543 house. Aside from the fact that plaintiff cannot take advantage of his failure to seasonably inform his counsel of the fact, the affidavits, so far as they would impeach Mrs. Ward, were based upon hearsay and would not justify granting the motion. Affirmed, with costs. Potter, C. J., and North, Wiest, Btjtzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. The late Justice Nelson Sharpe took no part in this decision.