291 N.W. 788 | Wis. | 1940
Action by Bertha Schubring, administratrix of the estate of Henry W. Schubring, deceased, against Sam Weggen to recover under the wrongful-death statute and for pain and suffering of said deceased, commenced March 26, 1938. From a judgment dismissing the complaint on the merits entered April 14, 1939, the plaintiff appeals.
Plaintiff's intestate, her husband, was killed as a result of injuries received in the overturning of an automobile in which he was riding as a guest of the defendant, when the defendant, who was driving on a road making a "T" intersection with a crossroad, ran straight across the intersecting road into a ditch and bank at the far side of the intersecting road. The plaintiff sues to recover her damages under the death-by-wrongful-act statute, and the damages for pain and suffering of the deceased resulting from his injuries. The case went to trial to a jury on a complaint alleging that the injuries for which recovery was sought were caused by ordinary negligence of the defendant. At the close of the plaintiff's evidence the plaintiff's counsel moved to amend his complaint to charge gross negligence on the ground that the defendant was driving the car while intoxicated. The amendment was permitted. The defendant moved for a nonsuit. The court reserved its ruling on this motion. The defendant then put in his evidence. At the close of the testimony the plaintiff moved the court to direct a verdict finding the defendant guilty of gross negligence that caused the injuries and the defendant moved for a directed verdict. The *519 court submitted to the jury the question of compensation for the injuries involved. On return of the verdict the court granted judgment dismissing the complaint on the merits. In this case the defendant while obviously drunk from the use of intoxicating liquor ran into a ditch and bank at the dead end of a road while driving an automobile, and his guest, the plaintiff's intestate, died from injuries sustained in the resulting overturning of the automobile. The trial court held that the guest assumed the risk of the dangers incident to the host's intoxication and dismissed the complaint.
The plaintiff claims that the host in driving the car in the condition he was in was guilty of gross negligence; that contributory negligence is not a defense in cases of gross negligence; and that as assumption of risk is a species of contributory negligence the defense is untenable.
This court is committed to the doctrine that assumption of risk is not contributory negligence. Scory v. LaFave,
The plaintiff also contends that under what is said by the court in Tomasik v. Lanferman,
Plaintiff's counsel complains that the court did not find the defendant guilty of gross negligence. While it does not expressly appear that the court so found, we shall dispose of the case on the ground that the defendant as matter of law was guilty of gross negligence by driving the automobile while so intoxicated as to make his driving a menace to the public. Tomasik v. Lanferman, supra. The defendant and the decedent were neighbors. They left together in the morning of a September day and until 6:15 p.m. spent their time successively in seven taverns, drinking intoxicating liquor together in nearly if not all of them. When they left for home, only a few miles away, the defendant took a road leading directly away from instead of toward his home, and did not know he was on a dead-end road when the accident occurred. The defendant admitted on the trial that he was intoxicated at the time of the accident.
The point here involved was in effect decided against the contention of the plaintiff in the case of Markovich v.Schlafke,
Plaintiff's counsel relies in support of his contention on a categorical statement in Knipfer v. Shaw,
It is plain common sense that one who has voluntarily become so intoxicated as to be bereft of his faculties ought not to be held exempt from the doctrine of assumption of risk when he voluntarily enters and remains in an automobile driven by a drunken driver. One who has so become so bereft ought to be held to the same degree of responsibility for protecting himself that he would be subject to if he were not intoxicated. Voluntary intoxication does not relieve one driving an automobile from his responsibility to care for others. No more should it relieve one voluntarily riding in an automobile from responsibility to care for himself. Voluntary intoxication in such case does not exempt one from the doctrine of contributory negligence. No more should it exempt one from the doctrine of assumption of risk. Contributory negligence and assumption of risk, if the former does not include the latter, are at least sufficiently related to bring both host and guest under the same rule as to nonexemption from responsibility. As intoxication of the host does not exempt him from responsibility for protection of *522 others, so intoxication of the guest does not exempt him from responsibility for self-protection. This should be the rule in case of reckless misconduct as well as in conduct amounting only to ordinary negligence. The reckless misconduct of the defendant that made him guilty of gross negligence was going from tavern to tavern all day and drinking until he became so intoxicated as to be bereft of ability to drive an automobile. The decedent, if he was so drunk that he did not appreciate the hazards incident to riding in an automobile driven by a drunken driver, was guilty of the same kind and degree of recklessness for his own safety as was the recklessness of the defendant for the safety of others. Reckless conduct of the guest should have the same effect as to himself, that reckless conduct of the host has as to others.
As to reckless misconduct it is stated in 2 Restatement, Torts, § 482 (2):
"(2) A plaintiff is barred from recovery for harm caused by the defendant's reckless disregard for the plaintiff's safety if, knowing of the defendant's reckless misconduct and the danger involved to him therein, the plaintiff recklessly exposes himself thereto."
It is also stated in 2 Restatement, Torts, § 503 (2):
"(2) An actor whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the actor's safety is a contributing cause of the actor's bodily harm."
Comment a under § 503 (2) reads as follows:
"a. The fact that an actor's misconduct is in reckless disregard of his own safety rather than merely negligent with respect to his safety is important in an action against a defendant whose conduct in reckless disregard of the actor's safety is a legal cause of the actor's harm. In such a case, the actor is not barred from a recovery by reason of his own negligence which legally contributes to cause his harm although he is barred from a recovery if his conduct is in reckless disregard of his own safety." *523
No case of this court has directly passed on the point next above discussed. There are numerous cases in other jurisdictions that have passed directly upon it. One of these cases is Hinkle v. Minneapolis, A. C. R. Ry. Co.
Although what we have above said disposes of the case we should perhaps pass more particularly upon grounds other than are above mentioned on which counsel for the plaintiff bases his contention. He contends that the defendant was *524
violating the criminal law by driving an automobile while intoxicated, sec. 85.81 (3), Stats.; that in killing the decedent while so driving he was guilty either of manslaughter in the first degree, sec. 340.10; Maxon v. State,
By the Court — The judgment of the circuit court is affirmed.