Van Blaircum v. Campbell

Clark, C. J.

Plaintiff appeals from judgment- on verdict directed for defendant. Plaintiff’s decedent was gratuitous passenger in an automobile owned and driven by defendant. It collided in the night on a public highway with the rear of a trailer. Defendant did not see the trailer. Perhaps he was not as watchful as he should have been. If defendant had seen the trailer and had been unable to stop in time, or if some question of lack of control were involved, the rate of speed might be important, but, as he did not see the trailer, how the speed has causal relation to the accident is not pointed out. But if speed of 45 miles per hour be conceded to be negligence it would not be gross negligence nor would it be wilfulness or wantonness.

The proximate cause of the accident was defendant’s failure to see the trailer. This mere failure, or inadvertence, or lack of care is, at most, ordinary negligence, so called. There is no room on this record to find gross negligence, nor to find wilfulness or wantonness. See Gibbard v. Cursan, 225 Mich. 311 , where the matter is discussed.

Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648), then effective, provides:

“That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence’ or wilful or wanton miscon *529 duct contributed to the injury, death or loss for which the action is brought.”

See Naudzius v. Lahr, 253 Mich. 216 (74 A. L. R. 1189, 30 N. C. C. A. 179).

Verdict was directed for defendant on this, statute and on another ground. On the facts stated and under the statute the court did not err. Other ground for direction of verdict is unnecessary to decision.

Affirmed.

McDonald, Potter, Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred.