Ashford v. Platt

177 N.W.2d 231, 22 Mich. App. 306, 1970 Mich. App. LEXIS 1979
CourtMichigan Court of Appeals
DecidedFebruary 27, 1970
DocketDocket No. 6,929
StatusPublished

This text of 177 N.W.2d 231 (Ashford v. Platt) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashford v. Platt, 177 N.W.2d 231, 22 Mich. App. 306, 1970 Mich. App. LEXIS 1979 (Mich. Ct. App. 1970).

Opinion

Lesinski, C. J.

Plaintiffs brought the instant suit to recover damages under the guest passenger statute1 for injuries sustained due to defendant’s alleged gross negligence. Defendant Platt was an uninsured motorist and the record discloses that he was not served with a copy of the summons and complaint. Under the Motor Vehicle Accident Claims Act,2 plaintiffs served the Secretary of State with a summons and complaint. The Secretary of State has defended the case both below and in this Court. Defendant Platt did not appear at trial and apparently has not been located to date. From judgment for plaintiffs, defendant brings this appeal as of right.

On August 21, 1966, plaintiffs Clinton Ashford, Georgia Johnson and Gertrude Williams were passengers in a car owned and operated by defendant. While driving on Mount Morris Road near the intersection with Henderson Road in Genesee County, the car went out of control and turned over several times, resulting in physical injuries to the passengers.3

At trial, after the close of defendant’s proofs, plaintiffs moved for a directed verdict on the issue [309]*309of liability for gross negligence. The trial court granted the motion, over defendant’s objections, leaving for the jury only the issue of measure of damages.4

The sole issue raised on appeal is whether the trial court erred in directing the verdict on the issue of gross negligence.

Two well-recognized rules apply in the instant case. On a motion for directed verdict, the court must view the evidence in the light most favorable to the party against whom direction is sought. McGrath v. Hargraves (1945), 310 Mich 510. A motion for directed verdict may only be granted where, on the issue directed, the record is such that reasonable minds could not differ. United States Fire Insurance Company v. Grand Trunk W. R. Co. (1955), 344 Mich 270.

The elements of gross negligence or willful and wanton misconduct were set forth in Tien v. Barkel (1958), 351 Mich 276, 281, 282, as follows:

“ ‘(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’ ”

The Tien decision also noted that each guest passenger case is sui generis in its factual circumstances and that no purpose is served by detailed examination of the numerous, and in some instances “irreconcilable,” decisions construing the term gross negligence.

[310]*310As with all gross negligence cases, an examination of the evidence adduced at trial is necessary. Six witnesses testified to the events surrounding the accident: the plaintiffs,6 the state trooper who arrived at the scene after the accident, and Mr. and Mrs. Zickafoose, who were riding in their car seven or eight hundred feet ahead of defendant’s automobile.6

The witnesses were all in basic agreement concerning weather and road conditions. The day was dry and clear. Mount Morris Road had a loose gravel surface, pitted with “small chuck holes” at the time of the accident.

The plaintiffs testified that although defendant’s driving had not been unreasonable before turning onto Mount.Morris Road, it became quite erratic at that point. Georgia Johnson testified that she rode in the front seat on the passenger side. She stated that she could see the speedometer and that defendant was driving 65 to 70 miles per hour on Mount Morris Road. She repeatedly asked him to slow down, but each time he simply said “okay” and maintained the same speed. She testified that the other passengers made similar requests, only to be met with similar results. She further stated that defendant was weaving across the center of the road. It was her opinion that defendant tried to turn from Mount Morris onto Henderson Road, a right angle turn, but was going too fast. The result was that the ear rolled over several times.

Gertrude Williams, who sat in the front between Mrs. Johnson and defendant, also testified that defendant was driving 70 miles per hour and was “zigzagging” down the road. She too stated that she had [311]*311warned defendant of his excessive speed and that at one point she had said “Lord, we are going to have a wreck.”

Clinton Ashford, who was riding in the hack seat, stated that defendant was driving “65, 70 — 65 miles an hour to my estimation.” He stated that after the passengers in the front had asked defendant to slow down and had been ignored, he leaned over the front seat and asked “What’s the rush?” Ashford also testified that defendant was weaving back and forth across the road. He was uncertain as to whether defendant tried to turn onto Henderson Road or whether he swerved to avoid a ditch when the car rolled over.

Although the plaintiffs testified that they believed defendant was intoxicated, the three uniformly admitted that they did not see him drinking prior to the accident. They stated that their belief was based solely on defendant’s behavior which they alleged to be “reckless.”

As these witnesses are all parties, and thus interested in the result of the suit, a question of credibility arises. The general rule regarding the credibility of witnesses was stated in Michigan Pipe Company v. Michigan Fire & Marine Insurance Company (1892), 92 Mich 483, 488:

“To justify a court in instructing a jury that a witness has told the truth, and in directing a verdict based upon the truthfulness of his evidence, there must be nothing in the circumstances or surroundings tending to impeach the witness, or to throw discredit upon his statements. If there is anything tending to create distrust in his truthfulness, the question must be left to the jury. Druse v. Wheeler, 26 Mich 195.” (Emphasis supplied.)

In the instant case, however, with the sole exception of the alleged warnings given defendant, the sub[312]*312stance of each of the allegations concerning defendant’s actions is supported by not only plaintiffs’ witnesses, but also the defense witnesses.

Herman Zickafoose, a witness called by defendant, testified that he observed defendant’s car in his rear-view mirror while riding approximately seven to eight hundred feet ahead of defendant. He stated that he was traveling at about 40 to 45 miles per hour, and that while he could give no exact estimate of defendant’s speed, defendant’s car “looked as if it was coming pretty fast, and it might be like it was— weaving around in the road.” Emma Zickafoose, another defense witness, also testified that she looked back and saw defendant’s car “coming at a pretty good speed.”

The state trooper, called by plaintiff, stated that when he arrived at the scene the car was lying on its “top or side.” It was his opinion that the cause of the accident was excessive speed for the road conditions. He issued a speeding ticket to defendant. He also testified that he could smell alcohol on defendant’s breath.

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Related

Ortega v. Lenderink
159 N.W.2d 140 (Michigan Court of Appeals, 1968)
Holbert v. Staniak
102 N.W.2d 186 (Michigan Supreme Court, 1960)
Tien v. Barkel
88 N.W.2d 552 (Michigan Supreme Court, 1958)
McGrath v. Hargraves
17 N.W.2d 733 (Michigan Supreme Court, 1945)
Druse v. Wheeler
26 Mich. 189 (Michigan Supreme Court, 1872)
Dondero v. Frumveller
28 N.W. 712 (Michigan Supreme Court, 1886)

Cite This Page — Counsel Stack

Bluebook (online)
177 N.W.2d 231, 22 Mich. App. 306, 1970 Mich. App. LEXIS 1979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashford-v-platt-michctapp-1970.