228 Wis. 45 | Wis. | 1938
Plaintiff is a salesman living in the city of Appleton. On the day of the accident he was a guest in a Ford panel-body type pf automobile owned by one Hopfens-perger and driven by defendant McElroy. For convenience this car will hereafter be referred to as the “McElroy car.” On the evening of December 14, 1935, Arthur Hopfens-perger,"Mike Judkins, George M. McElroy, and Max A. Schwab, the plaintiff, arranged a rabbit-hunting trip for the next day, which was Sunday. It snowed approximately three inches during the evening of the 14th. The party left
Defendant McElroy contends that the verdict is not supported by the evidence. The first important consideration is that McElroy was exonerated from the charge of negligent lookout and negligent speed. From this it must be concluded that the jury accepted McElroy’s story as to his rate of speed and his observation of the other car. The next consideration is that plaintiff assumed the risk of McElroy’s manner of driving, at least up to the last one hundred feet before the collision, since he made no protest, nor did anything to direct McElroy’s attention to whatever dangers were then apparent as a result of McElroy’s manner of driving. If there was anything in the situation up to that point that contributed proximately to the accident, the assumption of risk as to it would extend to the subsequent emergency caused by it, and plaintiff would be precluded from recovery by the doctrine of Young v. Nunn, Bush & Weldon Shoe Co. 212 Wis. 403, 249 N. W. 278.
If, on the other hand, there was ru> act on McElroy’s part up to the last hundred feet before the collision that proximately contributed to it, then our inquiry must be directed to what happened after that point, for on this hypothesis there would be no assumption of risk by plaintiff of negligent acts occurring so shortly before the collision as to make protest ineffective or impractical. From a careful consideration of the evidence we conclude that it does not support the jury’s findings of negligent control, negligent driving on the left side of the highway on meeting the Martin car, or negligent
Defendant Martin appeals from the judgment against him as well as that dismissing his cross complaint, but upon this appeal merely assigns as error that there was no proof that defendant Watson was his agent. It is, of course, evident that the cross complaint of Martin against McElroy must fail for the same reasons that compel a reversal of plaintiff’s judgment. The appeal of Martin from the judgment of plaintiff against him must also fail for the reason that the agency of defendant Watson for Martin was not in issue under the pleadings. The fact of this agency was fully alleged in the complaint, and an examination of Martin’s answer shows that no issue was taken with this allegation. This being true, the agency must be taken to be admitted and plaintiff was not obligated to make any proof or showing in this respect.
By the Court. — Upon the appeal of defendant McElroy the judgment is reversed, and cause remanded with directions to dismiss plaintiff’s complaint. Upon the appeal of Martin, judgment affirmed.