Kelly v. Bywater

171 N.W.2d 58, 18 Mich. App. 238, 1969 Mich. App. LEXIS 1050

• Court: Michigan Court of Appeals
• Decided: June 26, 1969
• Docket: Docket No. 5,744
• Status: Published

Opinion

J. H. Gillis, P. J.

On August 12, 1956, plaintiff Timothy Kelly, then eight and one-half years of age, was a passenger in an automobile owned and operated by defendant. Plaintiff was injured when defendant’s car went out of control and overturned. Plaintiff sued to recover for tbe injuries sustained and now appeals from a judgment following a jury verdict of no cause of action.

Plaintiff initially contends that the trial court erred in its instruction to the jury concerning -whether or not plaintiff was a guest passenger within the meaning of Michigan’s guest passenger statute.

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Plaintiff requested that the following instruction be given:

“The law presumes that a child between the ages of 7 and 14 does not possess sufficient ability, intelligence or experience to become a ‘guest’ under the guest passenger act.”

The trial court refused to give the requested instruction. The statement of law in plaintiff’s requested instruction was incorrect and the instruction as given was proper. Burhans v. Witbeck (1965), 375 Mich 253.

Plaintiff’s allegation that the trial court’s charge to the jury was confusing because it incorporated language of a Supreme Court opinion is without merit.

There is ample evidence to support the verdict and the trial court’s instructions as to the law applicable to the evidence presented were thorough and fair.

Affirmed. Costs to appellee.

All concurred.

OLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101).