172 Wis. 537 | Wis. | 1920
The question of the liability of a gratuitous carrier to his invited guest is presented and fully discussed in briefs of counsel. It appears that there is
“In general, the primary duty of caring for the safety of the vehicle and its passengers rests upon the driver, and a mere gratuitous passenger should not be found guilty of contributory negligence as a matter of law, unless he in some way actively participates in the negligence of the driver, or is aware either that the driver is incompetent or careless, or unmindful of some danger known to or apparent to the passenger, or that the driver is not taking proper precautions in approaching a place of danger, and, being so aware, fails to warn or admonish the driver or to take proper steps to preserve his own safety.” Carnegie v. G. N. R. Co. 128 Minn. 14, 150 N. W. 164.
“Ordinarily it is not .the province or even proper for a guest to attempt to direct the movements of the driver. 'The situation may be different when he knows that the*540 driver is operating the machine in a careless manner, or if he has knowledge of some danger which is not known or obvious to the driver.” See cases in Huddy, Automobiles (5th ed.) sec. 690.
Negligence of a guest may be inferred from action or. omission to act, speaking or omitting to speak, respecting the duty under all the circumstances. Accepting the hospitality 'of his friend does not excuse him from the duty of acting for his own safety as a reasonably prudent person would under like circumstances. White v. Portland G. & C. Co. 84 Oreg. 643, 165 Pac. 1005; Brommer v. Pennsylvania R. Co. 179 Fed. 577, 29 L. R. A. n. s. 924; Avery v Thompson, 117 Me. 120, 103 Atl. 4. The plaintiff in the instant case testifies frankly^ on the subject of the trip in defendant’s automobile on the evening in question. He states that he and defendant are intimate friends;' that he has-ridden with defendant in his car considerably; that on the evening in question they met about 6 o’clock and had some-drinks and lunched together until about 8 o’clock, when defendant proposed that plaintiff take a ride with him to show off his new car; that they went to the garage and got into the car and started on their, way to Belknap street; that the top was down, that the headlights were somewhat dim; that the windshield became frosted soon after starting, it being a cold winter evening, the thermometer registering ¿bout zero or a little lower; that he wore glasses and his eyesight was not good. As to the manner of driving on this trip plaintiff testifies;
“We went up John avenue t0‘ Belknap street and turned east on Belknap. A"change was made in the speed of the ■ car after we got on Belknap; the speed was gradually increased for a period of two or three blocks up to Hammond, which may be twelve blocks west of the Soo tracks. From there on until the time of the accident I think we kept about steady speed from that time on. I think I can tell from experience what speed we were going. I think he was going at least fifty miles an hour up to the time of the'*541 collision. I did not observe the train on the Soo track until we were right on top of it. . . .1 think I mentioned to him about the speed the car was going, that we was going pretty fast. I was not watching out for obstructions in the roadway. I was taking no part in the operation of the car, because it was cold and having my head over that way [indicating] to sort of break the wind. I didn’t think there was any wind apart from what the car made.”
On cross-examination the plaintiff stated that he did not know that the defendant heard him when he 'spoke to him about the car going “pretty fast;” that this remark was made shortly after turning onto Belknap street; that thereafter he neither said nor did anything about driving sp fast.
As to his familiarity with Belknap street and the railroad crossing, he testifies that he had driven on Belknap street and knew the Soo track.
“I think I knew just as much about the presence of the tracks across Belknap street, the use that was made of, them, the night and day switching, and those facts, that have been testified to here, as Mr. Corey did. I think I was just as familiar with them as he was. Now as we approached the Soo line tracks at this tremendous rate of speed it never occurred to me again to call the danger to Mr. Corey’s attention or to see that he heard me. . . . As we drove along Belknap street I kept no lookout myself; making myself as comfortable as I could, and let Corey drive along at a speed that would suit him. As we approached the crossing I did not give it and the probability of a train being there any consideration at all. I paid no attention to see whether Corey was watching for it.or not.”
The facts, circumstances, and conditions thus disclosed and the other evidence in the case show without dispute that the plaintiff, to all intents and purposes, acquiesced in the manner the car was being driven by Corey and that he did nothing to protect himself from the imminent dangers in approaching the Soo tracks crossing in the manner they did, and of which he was as fully apprised as Corey, nor did he do anything to ascertain whether or not Corey was keep
By the Court. — The judgment is reversed, and the cause rematided with direction to dismiss plaintiff’s complaint.