Walden v. Green , 346 Mich. 21 ( 1956 )

346 Mich. 21 (1956) 77 N.W.2d 266

WALDEN
v.
GREEN.

Docket No. 5, Calendar No. 46,667.

Supreme Court of Michigan.

Decided June 4, 1956.

Jacob A. Tolonen, for plaintiff.

Carl F. Davidson (Roy P. Nelson, of counsel), for defendant.

KELLY, J.

Plaintiff sought damages for injuries received while riding as a passenger in defendant's car, claiming defendant was guilty of gross negligence or wilful and wanton misconduct.^[*] At the close of plaintiff's proofs, the court directed a verdict for defendant.

The accident occurred on Linwood avenue, in the city of Detroit, as defendant was driving his car across a railroad track. The only testimony offered to give any evidence as to how the accident occurred was plaintiff's testimony, as follows:

"Q. Now, state whether or not before you get to the railroad track, whether there is a sign in the center of Linwood?

"A. Yes.

"Q. What kind of a sign is it?

"A. It is cement built down at the bottom, and then there is a light up higher. * * * It was twenty after six in the morning when we were going down Linwood. It was dark yet; the lights were on the car and there was a light on the sign.

"Q. Now, as you were going down Linwood, tell us what happened?

"A. Well, he bumped on that railroad crossing sign.

"Q. And then where did the car go, after it ran into there?

"A. It seemed to go, — the car seemed to go on that side, and then bumped into something else on that side. * * *

"Q. Where were you sitting?

"A. I was sitting behind.

"Q. Behind the driver; is that right?

"A. Yes.

"Q. How many people were there in the car other than Mr. Green, the driver?

"A. Two besides me. One was sitting on the right-hand side of me, and one with the driver, in the front seat. It was a woman that was sitting in the same seat with the driver and a man was sitting in the same seat with me.

"Q. Well, did you notice that he was going to bump that sign, or hit that sign before he hit it?

"A. No, I didn't notice until he struck the post."

On cross-examination, plaintiff testified:

"Q. And I also understand that you yourself did not see this object that my client struck that morning?

"A. Well, I see it after —

"Q. (Interposing) After the accident?

"A. Just when it struck.

"Q. I see. But, you didn't see it before that time?

"A. No."

Plaintiff's case is predicated on the theory that defendant had previously driven across the tracks and knew the signal abutment was in the center of the street and that, therefore, "defendant ran into the sign deliberately."

There is nothing in this record upon which a reckless state of mind could be predicated, or that defendant knew the abutment was there and intentionally struck it.

In Van Blaircum v. Campbell, 256 Mich. 527, this Court said:

"Perhaps he was not as watchful as he should have been. * * * This mere failure, or inadvertence, or lack of care is, at most, ordinary negligence, so called."

The record in this case does not sustain the charge of gross negligence or wilful and wanton misconduct of the defendant.

The trial court did not err in directing a verdict for the defendant. Judgment affirmed.

DETHMERS, C.J., and SHARPE, SMITH, BOYLES, CARR, and BLACK, JJ., concurred.

The late Justice REID took no part in the decision of this case.

NOTES

[*] PA 1949, No 300, § 401 (Stat Ann 1955 Cum Supp § 9.2101). — REPORTER.