Opinion
March 6, 1956 —
April 3, 1956.
APPEAL from a judgment of the circuit court for Washburn county: CARL H. DALEY, Circuit judge. Affirmed.
For the appellant there was a brief by Douglas, Omernik Bitney of Spooner, and oral argument by Edward E. Omernik.
For the respondents there was a brief by Louis G. Nagler of St. Croix Falls, and Toebaas, Hart, Kraege Jackman of Madison, and oral argument by Lawrence E. Hart.
This action was commenced on November 29, 1954, and was brought for the recovery of damages suffered as a result of an automobile collision. On October 29, 1954, plaintiff was a carpenter employed by one Durand at Spooner, Wisconsin. He and other employees of Durand, including the defendant Ed Magnus, were engaged on a job at Centuria, Wisconsin, approximately 60 miles from Spooner. The employees had an arrangement by which one of them drove his car to and from Spooner, carrying the others as his passengers. It was their custom to leave Spooner at about 6:30 a. m. to arrive at Centuria at about 7:30 or shortly thereafter.
Plaintiff testified: On the morning in question Magnus, driving his car with the plaintiff and other employees as passengers, left Spooner at about 6:30 a. m. Plaintiff was seated in the rear seat on the right side of the car. The road was slippery and there was some snowfall. Plaintiff noticed that the car seemed to skid a little at times. The party reached Cumberland, a city about 20 miles south of Spooner, at about 6:45 a. m. After leaving Cumberland they "came up over a hill," and found a car ahead of them which Magnus tried to pass. Magnus "had almost got around to the front of that car" when they saw a car coming toward them. Magnus pulled his car to his left and it was struck at its right rear fender by the oncoming car. When they first saw the oncoming car it was about 300 feet ahead of them. When Magnus was passing the car ahead of him he was traveling at the rate of about 45 or 50 miles per hour. As he was about to pass the car there was a cloud of snow thrown by it. When he, plaintiff, first saw the oncoming car the Magnus car was almost abreast of the car which Magnus was trying to pass. When he, plaintiff, first saw the oncoming car, he heard someone say "there is a car coming, Ed" (Magnus). On cross-examination he testified that Magnus was a fast driver and that several times he drove faster than was proper and safe, and he thought that October 29th was one of those times. He never complained about Magnus' driving. The snow which was thrown by the wheels of the car preceding the Magnus car was thrown just as the Magnus car was pulled up beside it and obscured the view ahead. Before Magnus tried to pass the other car he was traveling "up a little too close to him." At the place of the collision the road was straight and level. Magnus did not seem to drive differently on October 29th than he had on other occasions, "except maybe a little too fast for the road," which was slippery with snow. He did not complain of the manner in which Magnus drove; he thought that Magnus was driving too fast for safety.
The testimony of the defendant Magnus does not differ materially from that of the plaintiff. He testified that when he first saw the oncoming car it was 300 to 400 feet ahead of him and that he was then alongside the car which he was trying to pass. He did not apply his brakes. As he started to pass the car ahead of him he could see a quarter of a mile ahead. The snow which was kicked up by the rear wheels of the car had obstructed his vision for a time. At the time of the collision he was traveling at the rate of from 45 to 50 miles per hour.
In answer to the questions of a special verdict a jury found Magnus not guilty of negligence as to lookout, but that he was guilty of causal negligence as to speed and control, that he was negligent so as to increase the danger which plaintiff assumed when he entered the automobile as to speed and control, that he failed just prior to the collision to exercise the skill and judgment as to control of the car which he possessed, that plaintiff assumed the risk of the negligence of Magnus as to speed and control, and that plaintiff was not guilty of contributory negligence.
The usual motions after verdict were made and those of plaintiff were denied. On July 7, 1955, judgment upon the verdict and dismissing the complaint was entered. Plaintiff appeals.
Among other things plaintiff urges that the court should have changed the answer to the question which inquired whether plaintiff had assumed the risk of the negligence of defendant Magnus as to speed from "Yes" to "No."
One cannot be said to be driving at a reasonable rate of speed who in snowy weather and on a slippery road expects to cover a distance of 60 miles in about an hour of driving time and does, as Magnus did on the morning in question, drive a distance of at least 20 miles to the scene of the accident in about a quarter of an hour. There is abundant proof of speed.
We have no difficulty in reaching the conclusion that the speed at which Magnus drove was, under the road and weather conditions then existing, a cause, if not the sole cause, of the accident.
The plaintiff knew on the morning in question that Magnus was driving too fast for safety; yet he made no complaint. See Bourestom v. Bourestom (1939), 231 Wis. 666, 285 N.W. 426, where we held that under similar circumstances a guest must be held as a matter of law to have assumed the risk.
"A guest does not assume the risk of a host-driver's sudden or momentary failure to exercise due care . . . . However, if the negligent act of the host-driver which causes injury is a continuance or repetition of similar negligence on his part, for which there had been occasion or opportunity to render protest, the guest-passenger, in failing to protest assumes the risk." Olson v. Williams (1955), 270 Wis. 57, 66, 70 N.W.2d 10.
It is also urged that we should hold as a matter of law that plaintiff did not assume the risk incident to defendant's negligent management and control of the car, that the rule that a guest does not assume the risk of a host-driver's sudden or momentary failure to exercise due care applies. If we were to agree with that contention and could, upon the facts here presented, completely separate the two findings and treat them independently of each other, we might under the authority of State ex rel. Litzen v. Dillett (1943), 242 Wis. 107, 7 N.W.2d 599, 9 N.W.2d 80, be required to hold that the trial court erred in permitting the finding that plaintiff had assumed the risk incident to defendant's negligent management and control to stand, and that, consequently, plaintiff should have judgment.
We may not treat the two findings, those respecting speed and control, independently of each other. As we have stated, the negligent speed at which Magnus drove might well be found to have been the sole cause of the collision. It was his speed, his anxiety to cover a distance of 60 miles in an hour's time under unfavorable road and weather conditions which placed him in a position where the proper control of his car was almost impossible. See Young v. Nunn, Bush Weldon Shoe Co. (1933), 212 Wis. 403, 410, 249 N.W. 278, where we said:
"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."
By the Court. — Judgment affirmed.