Boyle v. Moseley

After verdict for plaintiff, the trial judge, on defendant's motion, entered judgment non obstante. The sole question presented on plaintiff's appeal is whether in so doing error was committed. Plaintiff's ward, Beatrice Boyle, hereinafter called the plaintiff, was injured while riding as a guest in the automobile driven by defendant. If there was testimony tending to support plaintiff's claim that defendant was guilty of gross negligence or of wanton or wilful misconduct, which *Page 348 caused her injury, entry of judgment non obstante was erroneous. In passing upon the question presented, the testimony must be considered most favorable to plaintiff. Thus viewed, the testimony shows that, about nine o'clock in the evening of October 30, 1929, defendant was driving a Chevrolet coach in a southerly direction on U.S. 2. A young lady occupied the front seat with defendant, while plaintiff and another young man companion were in the rear seat. Defendant met a car "that had very blinding lights," so blinding, he testified, that "I couldn't see where I was driving after I got up close to the car." As these automobiles approached each other they were going 35 to 45 miles per hour. Defendant testified "I was driving about 45 miles an hour; I was in a hurry to get to the party." After defendant got within 40 feet of the approaching vehicle he could not see where he was going. He testified the glare of the lights of the passing car was about the worst he had ever seen, and another witness who was passed by the same vehicle testified that on account of the glare he stopped at the side of the road, and that he was blinded by the passing lights for 60 seconds. As the approaching car neared defendant, it swerved somewhat in his direction, and he thereupon turned his car to the right so that its right-hand wheels left the pavement and were running in the gravel; and he testified that he was afraid at that time to apply his brakes for fear he would go into the ditch, obviously because of the rate of speed at which he was then driving. He had four-wheel brakes, and could have stopped the car had he applied them. He had seen the other car approaching when it was nearly a half a mile away, and noticed it had bright lights, but he continued his speed at the rate of 35 or 40 miles per hour until the approaching lights became so bright that defendant could not see the side of the road. He testified, "I *Page 349 had my foot on the brakes all during that time; and after he got past there were a few seconds that I was blinded by the lights, and it was during that time that I hit the post and turned over." The post referred to was a mail box standard erected in the highway. There is testimony that plaintiff's car ran 120 feet after passing the other car before striking this post; that it then went into the ditch, overturned, and injured plaintiff, that defendant did not "slacken (his speed) at all," that his car left the surface of the road and swayed back and forth several times. Further, that as defendant approached the point of accident, he was driving with one hand, and that his right hand rested on his companion's knee. In the light of the foregoing and from other like testimony in the record, we think it cannot be said, as a matter of law, that there was no proof of gross negligence or of wanton or wilful misconduct sufficient to sustain recovery by plaintiff under the so-called guest act (1 Comp. Laws 1929, § 4648). The terms gross negligence and wilful and wanton misconduct have no different meaning than that ascribed to them prior to the enactment of the above-cited statute. In Gibbard v. Cursan, 225 Mich. 311, Mr. Justice CLARK, speaking for the court, said: "If one wilfully injures another, or if his conduct in doingthe injury is so wanton or reckless that it amounts to the samething, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence — is different in kind." Defendant's claim that his failure to apply his brakes or in any way slacken the speed of his car was due to his fear that in so doing he might cause his automobile to leave the road and go into the ditch, may or may not have been believed by the jury. Surely if it was not believed, it could hardly be questioned that defendant's failure to in any *Page 350 manner slacken the speed of his car was negligence of the grossest sort, and constituted wilful and wanton misconduct on his part. The law imputes intention to do harm where there is a reckless disregard for the safety of others. See note 69 L.R.A. 516. For cases arising out of somewhat similar circumstances and involving the question of gross negligence and wilful misconduct, see Rog v. Eltis, 269 Mass. 466 (169 N.E. 413); Blood v. Adams, 269 Mass. 480 (169 N.E. 412); Kirby v. Keating, 271 Mass. 390 (171 N.E. 671). Appellee urges that the swerving of the approaching car in his direction when about 40 feet away resulted in its lights becoming more blinding to him, and thereby he was confronted with a sudden and unexpected danger, and that, therefore, his subsequent acts cannot be held to constitute gross negligence or wilful and wanton misconduct. This would depend upon whether the jury believed defendant's testimony as to the lights becoming suddenly more blinding, and also upon whether defendant's perilous position was produced by his own negligence. Walker v. Rebeuhr, 255 Mich. 204. An issue of fact still remained. If responsibility cannot attach for so-called gross negligence except the one charged is guilty of wilful misconduct, then the judgment entered in the circuit court must be affirmed; but it is submitted that such is not the law. In the opinion of Mr. Justice FEAD in Finkler v. Zimmer, ante, 336, it is emphasized that: "It (gross negligence) must be characterized by wantonness at least. But I wish to avoid concurring in the view that, to be liable, a defendant must have had the intention to hurt someone and that liability cannot be predicated on a negligent act which is wantonly reckless rather than malicious." *Page 351 Clearly there is some testimony in this record of defendant's being "wantonly reckless" in his disregard of the safety of plaintiff and the other occupants of his automobile. The jury passed upon the sufficiency of this testimony. A very recent and well-considered case, so similar in facts and questions involved that it cannot be distinguished, is reported inSiesseger v. Puth, 213 Iowa, 164 (239 N.W. 46). The Iowa guest statute permits recovery if the damage to the guest is caused by the "reckless operation" of the motor vehicle; and it was there held to have been a question of fact. In another Iowa case decided a few days after the Siesseger Case, it is said: "This action is founded upon recklessness, which means more than negligence. It means proceeding without heed of, or concern for, consequences. See Siesseger v. Puth, 213 Iowa, 164 (239 N.W. 46). In order for conduct to be reckless within the meaning of the law, it must be such as to manifest a heedless disregard for or or indifference to the rights of others."Neessen v. Armstrong, 213 Iowa, 378 (239 N.W. 56). We think the circuit judge was in error in holding that there was no testimony supporting the verdict of the jury finding defendant guilty of gross negligence or wilful and wanton misconduct and in entering judgment for defendant non obstanteveredicto. The judgment thus entered should be set aside, and the case remanded, with direction to enter judgment on the verdict as rendered. Appellant should have costs. McDONALD, POTTER, and WIEST, JJ., concurred with NORTH, J.