212 Wis. 403 | Wis. | 1933
The following opinion was filed June 29, 1933 :
Since this case involves the appeals of two alleged joint tortfeasors, each making separate contentions, it will be convenient to consider these contentions separately.
Between the defendant Petras and the plaintiff there existed the relation of host and guest, and consequently the contentions of this defendant have to do with the legal consequences of this relation. It is Petras’ contention that the evidence shows, and that the jury found, defendant to have been driving his car, at the time he swerved and struck the pole, in the same manner that he had always driven when plaintiff was with him; that under the decisions plaintiff as guest accepted the defendant and his vehicle in their condition, with such skill as defendant possessed and subject to
It is the contention of Petras that the only negligence on his part which proximately contributed to the result consisted in the speed at which he operated his car, and his intention, evidenced for some time prior to the collision, to pass the Nunn-Bush truck on its right, at or near the intersection ; that these were not momentary matters; that plaintiff acquiesced in the manner of-driving for the reason that this was Petras’ ordinary and usual manner of driving, and for the further reason that she made no protest. This leads to defendant’s claim that upon the verdict and under the decisions of this court he is entitled to judgment regardless of the jury’s finding of negligence, and that the case falls clearly within the doctrine of Knipfer v. Shaw, 210 Wis. 617, 246 N. W. 328, 247 N. W. 320, in which this court, speaking through Mr. Justice Nelson, stated that there can be no recovery when these elements are present: (1) A hazard or danger inconsistent with the safety of the guest; (2) knowledge and appreciation of the hazard by the guest; (3) acquiescence or a willingness to proceed in the face of the danger.
The doctrine of these cases has been summarized in the Knipfer Case, and there can be no doubt of the rule that the guest must take the host, with his defects of skill and judgment, and his known habits and eccentricities of driving, and in addition that the guest will be considered to acquiesce in any course of driving that has persisted long enough to give him an opportunity to protest and thus indicate dissent or disapproval of the manner of driving.
With respect to speed and the plainly manifested intent of Petras to pass the truck upon its right, we see no escape from the conclusion that plaintiff assumed the risk. This course of conduct on the part of Petras was found by the jury to constitute his usual manner of driving, and it is clear that plaintiff made no protest.
There remain to be considered two items of negligence on the part of Petras, with respect to which it can be said from the record that plaintiff had no opportunity to protest or acquiesce. The first relates to lookout. In the special verdict the jury found that Petras was negligent in that he failed to keep a proper lookout. The evidence sustains this
Another act of negligence was found by the jury, with respect to which the trial court correctly held that there could be no opportunity for acquiescence or protest. That related to the question of control. Assuming that this question was intended to and did elicit from the jury the conclusion that Petras, after the Nunn-Bush truck had swerved into his path, was negligent with respect to the manner of operating or controlling his car, there are several difficulties in plaintiff’s path. The first is that the question of control, which, under all the decisions, involves skill and judgment, was not submitted in such a way as to be the basis for a
If a host is proceeding at a negligent rate of speed, which the guest assumes, and by reason of this speed finds himself in a situation requiring instant decision and giving him opportunity for further negligence with respect to control, it is impossible to isolate the subsequent negligence from the prior negligence and to hold, in spite of the fact that the guest has acquiesced in the former, that the momentary character of the latter makes acquiescence impossible. In such a situation, where the emergency itself is produced by negligence of the host, the guest who has assumed the risk of such negligence must be held to assume the risk involved in the emergency produced by it. This is the situation here.
With respect to the Nunn-Bush truck, it is the contention of the defendant Nunn, Bush & Weldon Shoe Company that its driver was in no respect negligent. The jury found negligence on the part of the driver of the truck with respect to lookout, swerving his truck to the right without ascertaining that such movement could be made with safety to other vehicles, and without signaling his intention to swerve; also with respect to speed. The speed was found not to have been a cause of plaintiff’s injuries. We fail to find any evidence to sustain the answer of the jury with respect to lookout. The evidence indicates that the driver looked as he entered the intersection; that he saw the green truck and cleared the intersection ahead of it. Assuming that there is evidence to sustain the answer as to speed, plaintiff concedes that there was no causal connection between the speed of the Nunn-Bush truck and this accident, since a greater speed would have been more efficient in avoiding the accident than the speed actually maintained. With this we agree. The only item that can be argued to have caused or contributed to the accident is the conduct of the truck driver in swerving to the right suddenly and without signal. There was no statute forbidding him to swing to the right without signal, and there was a rule of the road forbidding drivers to pass him upon the right, or to pass at all without a signal of intention to pass. We think that the driver of the truck had a right to assume that no car would attempt to pass upon
The foregoing conclusions make unnecessary a consideration of the other assignments of error.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiff’s complaint.
A motion for a rehearing was denied, with $25 costs, on September 12, 1933.