Olszewski v. Dibrizio

Michigan Supreme Court

Olszewski v. Dibrizio

275 N.W. 194, 281 Mich. 423, 1937 Mich. LEXIS 900

CourtMichigan Supreme Court

DecidedOctober 4, 1937

DocketDocket No. 92, Calendar No. 39,484.

StatusPublished

Cited by11 cases

This text of 275 N.W. 194 (Olszewski v. Dibrizio) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Olszewski v. Dibrizio, 275 N.W. 194, 281 Mich. 423, 1937 Mich. LEXIS 900 (Mich. 1937).

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Opinions

*424 Potter, J.

Plaintiff sued defendant for damages arising from personal injuries alleged to have been sustained by her while she was riding with defendant in his automobile as a guest passenger, August 4, 1935. She charges defendant with gross negligence arising from driving at an excessive rate of speed and in violation of the statute, and that “said defendant wilfully and wantonly removed both of his hands from the steering Avheel of his said automobile in an effort to light a cigarette,” as a result of Avliich the automobile left the road, ran into a ditch, tipped over and plaintiff was injured. Upon the hearing, the trial court directed a verdict for defendant. Plaintiff appeals.

The only question is whether the trial.court was right in directing a verdict for defendant.

Upon motion for directed verdict, it is the duty of the trial court to view plaintiff’s testimony in its most favorable light. The record shows plaintiff up to the time of the accident had been using ordinary care. It was a bright day, the pavement was dry, and the parties were on their way to a picnic.

In Willett v. Smith, 260 Mich. 101; McLone v. Bean, 263 Mich. 113; Elowitz v. Miller, 265 Mich. 551; Johnson v. Fremont Canning Co., 270 Mich. 524; and Sherman v. Yarger, 272 Mich. 644, this court attempted to enumerate the essential elements of AAdlful and Avanton misconduct as (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. Ordinary negligence fulfills *425 the requirements of this attempted definition or enumeration and by the application of the test prescribed becomes synonymous with gross negligence. We have frequently held and now hold that gross negligence as used in the guest statute * is synonymous with wilful and wanton misconduct. Oxenger v. Ward, 256 Mich. 499; Bobich v. Rogers, 258 Mich. 343; Mater v. Becraft, 261 Mich. 477; Findlay v. Davis, 263 Mich. 179; Riley v. Walters, 277 Mich. 620; Breckenridge v. Arms, 279 Mich. 384. The trial court arrived at a correct conclusion.

Judgment affirmed, with costs.

Butzel, Bushnell, and Chandler, JJ., concurred with Potter, J.

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*424 Potter, J.

Plaintiff sued defendant for damages arising from personal injuries alleged to have been sustained by her while she was riding with defendant in his automobile as a guest passenger, August 4, 1935. She charges defendant with gross negligence arising from driving at an excessive rate of speed and in violation of the statute, and that “said defendant wilfully and wantonly removed both of his hands from the steering Avheel of his said automobile in an effort to light a cigarette,” as a result of Avliich the automobile left the road, ran into a ditch, tipped over and plaintiff was injured. Upon the hearing, the trial court directed a verdict for defendant. Plaintiff appeals.

The only question is whether the trial.court was right in directing a verdict for defendant.

Upon motion for directed verdict, it is the duty of the trial court to view plaintiff’s testimony in its most favorable light. The record shows plaintiff up to the time of the accident had been using ordinary care. It was a bright day, the pavement was dry, and the parties were on their way to a picnic.

In Willett v. Smith, 260 Mich. 101; McLone v. Bean, 263 Mich. 113; Elowitz v. Miller, 265 Mich. 551; Johnson v. Fremont Canning Co., 270 Mich. 524; and Sherman v. Yarger, 272 Mich. 644, this court attempted to enumerate the essential elements of AAdlful and Avanton misconduct as (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. Ordinary negligence fulfills *425 the requirements of this attempted definition or enumeration and by the application of the test prescribed becomes synonymous with gross negligence. We have frequently held and now hold that gross negligence as used in the guest statute * is synonymous with wilful and wanton misconduct. Oxenger v. Ward, 256 Mich. 499; Bobich v. Rogers, 258 Mich. 343; Mater v. Becraft, 261 Mich. 477; Findlay v. Davis, 263 Mich. 179; Riley v. Walters, 277 Mich. 620; Breckenridge v. Arms, 279 Mich. 384. The trial court arrived at a correct conclusion.

Judgment affirmed, with costs.

Butzel, Bushnell, and Chandler, JJ., concurred with Potter, J.

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275 N.W. 194, 281 Mich. 423, 1937 Mich. LEXIS 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olszewski-v-dibrizio-mich-1937.

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