230 Wis. 47 | Wis. | 1939
The material facts are comparatively few. Elwood C. Fischer and Ruth Fischer are husband and wife. On the evening of Sunday, March 7, 1937, they dined at the Lodge, a restaurant located on Indiana avenue in the city of Sheboygan, between Nineteenth and Twentieth streets. Indiana avenue, also known as State Trunk Highway No. 28, runs east and west. During the dinner hour the
The appellants make a number of alternative contentions: (1) That Elwood C. Fischer was negligent in no respect; (2) that Ruth Fischer was negligent in no respect; (3) that if either of the Fischers was negligent it was Mrs. Fischer,
Does the evidence sustain the finding of the jury that Elwood C. Fischer was guilty of negligence in operating his car just prior to the accident in not maintaining a proper lookout, in backing it out and stopping it upon a portion of the concrete and in staying there while the Voss car was approaching from the west ? According to- the testimony, it was dark at the time of the collision. The place of the collision was beyond the limits of the city of Sheboygan. The trafile on Highway No. 28 was ordinarily quite heavy. Under the circumstances, it is our opinion that the jury was warranted in finding Mr. Fischer guilty of twenty-five per cent of the causal negligence. Fiad the accident occurred in the daytime a wholly different view of the accident might be taken. There can be no question as to the right of Mr. Fischer to back up into- Highway No. 28 in executing a “Y” turn, but it was clearly his duty to exercise ordinary care in so doing. Fiad he not stopped his automobile on the traveled portion of Highway No. 28, the accident would not have happened. There is no suggestion in the evidence that the Voss car was being driven on any part of the right shoulder.
Was Ruth Fischer guilty of contributory negligence as a matter of law? Ruth Fischer was not driving the car. Except as already detailed, she made no suggestions or gave no directions regarding its operation. When asked by her husband: “How are things from the west?” she immediately
Should the negligence of Mr. Fischer, as found by the jury, be imputed to Mrs. Fischer ? It is conceded that Mrs. Fischer was a guest in her husband’s car up to the very time that Mr. Fischer asked her the question: “Plow are things from the west?” That question was promptly and truthfully answered. It is contended that from that time on the relationship between Mr. Fischer and Mrs. Fischer was one of mutual agency, as was held to' exist under the undisputed facts considered in Knipfer v. Shaw, 210 Wis. 617, 246 N. W. 328, 247 N. W. 320. The facts in that case were quite unusual and peculiar and, in our view, the holding there should not be applied here. The host and guest relationship may not be so easily terminated. We have examined the cases cited by appellants which involved collisions between trucks or wagons and trains at railroad crossings. Klande v. Great Northern R. Co. 163 Minn. 123, 203 N. W. 773; Franklin v. Minneapolis, St. P. & S. S. M. R. Co. 179 Minn. 480, 229 N. W. 797; Morningstar v. North East Penn. R. R. 290 Pa. 14, 137 Atl. 800; Lundergan v. New
Did Mrs. Fischer, under the circumstances, assume as a matter of law the risk of Mr. Fischer’s negligence? The only negligence of Mr. Fischer which it may be argued was assumed by Mrs. Fischer was the backing of his car too far onto the pavement. She did testify that she looked to the rear and observed the position of the car with respect to the pavement and felt that there was no danger. The encroachment by her side of the car was considerably less than the encroachment by the left side of the car. She perhaps did not appreciate the fact that the position of the car was in an oblique position. She was, in our view, at that time a guest in her husband’s car, and the duty which rested upon her was clearly not as great as that which rested upon her husband, wliO‘ was the operator of the car. We think the question of Mrs. Fischer’s assumption' of risk of injury was, under the facts of this case, peculiarly a question for the jury.
By the Court. — The judgments are affirmed.