I find no evidence of wanton or wilful misconduct.* The case falls within the holding in Wyma v. Van Anrooy, 260 Mich. 295. *Page 527
Visibility of unlighted objects was limited to a short distance, but automobile lights were visible for, at least, 200 feet. The driver of the first truck described the approach of the car for that distance and detailed its movements, and the driver of the second truck, about 300 feet in the rear of the first truck, saw the contact between the car and first truck, and its movements from there on until it collided with his truck. The two trucks were on the extreme westerly side of the 40-foot pavement, and their positions left, at least, 30 feet of the pavement in the clear. The automobile plaintiff's driver attempted to pass was on the extreme easterly side of the pavement and this left, at least, 20 feet of the pavement in the clear between the first truck and the other automobile when abreast.
It is fair to assume that lights and locations of traffic, visible to the truck drivers, were visible to plaintiff's driver. It may, on account of the wet condition of the pavement, have been negligence or want of due care for plaintiff's driver to start the attempt to pass the other automobile at a point where progress would bring his car between that automobile and the truck but, even so, it cannot be classed as wilful and wanton misconduct, for there was, at least, 20 feet in the clear for passage.
There was no evidence of intoxication or reckless driving, and no explanation of cause of the deflection of the car from its free and open course before its contact with the trailer of the first truck. That contact did not cause injury to plaintiff. What effect it had on the control of the car, if any, is problematical but we are informed that, from that point, the car made progress for 300 feet in an "are" and collided with the second truck and killed *Page 528 all of its occupants, except plaintiff. That movement of the car would indicate loss of control by reason of contact with the first truck but, be that as it may, the evidence does not warrant the sole conclusion of wanton or wilful movement.
The learned circuit judge evidently thought the case controlled by our opinions in McLone v. Bean, 263 Mich. 113, and Goss v. Overton, 266 Mich. 62.
In the McLone Case —
"The road on which the defendant was driving was dangerous for travel. It was used as a detour and contained much loose gravel. It was dry and dusty. At the point of the accident, he was driving 68 or 70 miles an hour in a dense cloud of dust, so dense that he could not see the front of his own car. Another car had just passed and was directly in his way. These conditions presented a situation which to the ordinary mind required the exercise of care to prevent injury to his passengers. Ordinary care required that he stop or slow down until he could see to go forward. He did neither. Instead, he accelerated his speed and shot forward in an attempt to pass the car ahead of him. What happened is just what a man of ordinary intelligence ought to know would happen. He ran off the road."
It also appeared that defendant in that case was racing with another larger and faster car, and that plaintiff therein requested him not to drive so fast. Instead of decreasing his speed he "stepped on the gas." We held his conduct was utterly reckless and in disregard of probable consequences.
In the Goss Case the road over which defendant was driving was freshly graveled and visibility was poor. Like in theMcLone Case defendant drove in a thick cloud of dust without lessening his speed. The driver there was suddenly confronted by a truck *Page 529 road scraper, attempted to swerve out of its path and negotiate a curve and his car hit a telephone pole at the side of the road. We there said:
"There is no exact standard or measurement by which we may determine where negligence ends and wilful or wanton misconduct begins, and each case must be decided on its own facts."
I am unable to bring the case at bar within the holdings last mentioned.
The judgment is reversed, with costs, and without a new trial.
NELSON SHARPE, NORTH, FEAD, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with WIEST, J.
* See 1 Comp. Laws 1929, § 4648. — REPORTER.