Baird v. Cornelius

• Decision Date: 10 January 1961
• Citation: 107 N.W.2d 278,12 Wis.2d 284
• Parties: Joseph BAIRD, Respondent, v. Orville D. CORNELIUS et al., Appellants (Two notices of appeal).
• Court: Wisconsin Supreme Court

Page 278

107 N.W.2d 278

12 Wis.2d 284

Joseph BAIRD, Respondent, v. Orville D. CORNELIUS et al., Appellants (Two notices of appeal).

Supreme Court of Wisconsin.

Jan. 10, 1961.

Rehearing Denied March 7, 1961.

Flatley, Galloway & Olson, Kaftan, Kaftan & Kaftan, Green Bay, for appellants.

Burns & Lubinski, Seymour, for respondent.

DIETERICH, Justice.

The two appeals present the following issues:

1. Assumption of risk on the part of plaintiff, Joseph Baird, as a matter of law.

2. Contributory negligence on the part of the plaintiff passenger and guest, Joseph Baird.

3. Whether the emergency doctrine applies as to John R. Handlen.

4. Absence of causal negligence as to lookout on the part of defendant, John R. Handlen.

Assumption of risk and contributory negligence.

The defendants-appellants contend that the plaintiff assumed the risk of injury upon the assumption that Cornelius and Baird were intoxicated as a matter of law. They further contend that the court failed to instruct the jury as to the legal effect of certain blood tests in accordance with sec. 325.235, Stats. It is also contended that the plaintiff Baird was guilty of contributory negligence as a matter of law, and the court should have included a question in the special verdict inquiring as to the contributory negligence on the part of the plaintiff.

The testimony of Joseph Baird reveals that he was forty-five years of age, that he knew Cornelius for at least ten years, and with the exception of the day of the accident had never been a passenger in the Cornelius car other than driving back and forth from their place of employment at the Weisler Construction Company in Appleton, Wisconsin. He further testified, 'I got up about a quarter of eight in the morning and had breakfast with my mother who had prepared it. After breakfast I stayed home until nine o'clock in the morning when I walked down to the Episcopal Church. I had nothing to drink at home in the way of beer or liquor that morning before I went to the Episcopal Church because we didn't have anything. I left at nine. The church is about one mile north of my house towards Oneida. The purpose of going was to have the janitor cut my hair. His name is Elmer Wheelock. He cut my hair that morning; I got to the Episcopal Mission about nine-thirty. I left a little after ten and went to the White Eagle Tavern, not quite a quarter of a mile from there, toward Oneida on Highway 54 and arrived at the White Eagle Tavern about ten after or a quarter after ten. I went to the south end of the bar to my right as I walked in. There were other people at the other end of the bar whom I don't remember. I got two beers at the White Eagle Tavern and ordered one as soon as I got my cigarettes, about eight ounce glasses. About ten minutes after I was there Mr. Cornelius came there. I had not seen him earlier that day. He went to the other end of the bar and talked to these people and then came over by me for a couple of minutes. Then he said 'Let's go up and take a ride up to Oneida.' He said he wanted to see Herman Denny. I didn't see Mr. Cornelius take anything to drink at the White Eagle Tavern while he was visiting me. I didn't pay too much attention as to whether he had anything to drink while he was at the other end of the bar. Mr. Cornelius was in the White Eagle Tavern not more than ten minutes. I don't think I was in the White Eagle Tavern much more than twenty minutes and Mr. Cornelius was in there about one half that time. Mr. Cornelius had no beer that I observed and I didn't see him drink anything while visiting the other people. When we left the White Eagle he drove his car, a 1957 Plymouth four-door sedan. When we got to Oneida he drove into Bunker's Tavern. We came in the back door. There was nothing unusual about the manner in which Cornelius operated his car as he left the White Eagle Tavern. He parked his car and we walked into the tavern. We arrived about ten-thirty. I ordered a glass of beer and asked Mr. Cornelius if he cared for anything to drink and he said 'No.' Mr. Cornelius did not drink anything at the Bunker Tavern that morning while I was there and he was in the tavern all the time I was. I don't think we stayed at the Bunker Tavern more than five minutes and I had no more than one eight ounce glass of beer. He said 'Let's take a ride toward Seymour.' We left the tavern. He had to complete his circle around the tavern, and where the village street intersects or meets Highway 54 there is a stop sign where Mr. Cornelius stopped his car. He had no difficulty making that turn and driving around the tavern to get to Highway 54. After we stopped at the stop sign, he continued on Highway 54 without stopping until we got to Rettmann's Tavern about five miles south of Oneida. The front of the Rettmann building faces south and the tavern entrance is in the center of the east side of the building. We got out of the car and walked into the tavern. We both went to the men's room. I left the men's room first, walked to the bar, ordered two more glasses of beer. Mr. Rettmann was tending bar. As Orville came out of the men's rest room, he said 'Let's go,' I offered to pay for the two glasses of beer because he didn't want to drink anything there. The tavernkeeper said 'never mind.' We were not in the tavern more than two or three minutes. We left and then got into the car. Orville was behind the wheel and I to his right in the front seat. As we were approaching the highway I was looking to my right which was west. I would say the Cornelius car had to travel from its position after he had backed and straightened out to the north edge of 54 somewhere in the neighborhood of 80 feet. When we got past the east side of the building, I glanced to my right and made an observation to see whether or not there were any cars approaching from my right on Highway 54. There were none. Mr. Cornelius did not ask me to look. I generally look to see if anything is coming to my right side of the car. As the car was leaving the Rettmann property and approaching the highway, it could not have traveled more than five miles an hour. It did not stop at any time after it started up when it was straightened out, and before it entered onto the highway, because we just slowed down. After we got beyond the side of the building I looked to my right and saw nothing, I did not look in any other direction before this collision occurred. When I first saw the Bakery truck the Cornelius car was already making the turn, we were on the highway across the center line, the front end of the car was already across the center line facing east. When I first saw the truck it must have been right there because I just seen the front and that is the last I remember. I have no recollection of what happened immediately after the impact.'

Orville Cornelius testified as follows: 'I am thirty-one years of age. I arose on August 2d about seven or seven-thirty, went to Andy's Bar and had three or four bottle of beer. I went to Joseph Baird's house and found him drinking canned beer with his brother, Edwin. I had a can of beer with them. Joseph Baird and I went to the White Eagle Tavern, arriving there between nine-thirty and ten. We stayed at the White Eagle Tavern, having a few beers, for twenty or twenty-five minutes. I do not know how many beers we had there. We then went to Bunker's Tavern. I do not know how many we had at that tavern. We then went to Rettmann's Tavern where we had one glass of beer. I do not know if Joseph Baird was intoxicated, but I think he had some beer, the way he looked to me. We left Rettmann's about eleven. I was driving and Joseph Baird was in the right front seat. We started up slow, backed up to the east to clear the tavern and started south toward the highway. I looked to the east and saw nothing coming. The sum was too bright and I didn't see the truck. I had asked Joseph Baird to look to the west to see if anything was coming. He said there wasn't anything was coming. My car was entirely south of the center line of the highway at that time and my car was facing east at the moment of impact. I could not say anything about the speed of the truck. I had no difficulty driving my car. I think the reason I did not see the Dick Brothers Bakery truck was because of the sun in my eyes. It was not Baird's and my practice to pal around together.'

John Handlen testified that his speed immediately before the accident was 50 miles per hour and that he first noticed the Cornelius car when it was in the driveway leading into Highway 54 and his car was about 300 feet away. He estimated the speed of the Cornelius car at eight to ten miles per hour. Handlen testified that he didn't swing to the right instead of the left because he would have hit him square. The Cornelius car was at the time of the collision about five to eight feet across the centerline of the highway.

The testimony of Grace Bunker, who operates Bunker's Tavern with her husband, is that Baird and Cornelius came into their tavern on August 2, 1958. Baird had part of a glass of beer. Cornelius had nothing to drink. They stayed about three minutes. There was nothing to indicate that either one was under the influence of liquor.

The claim of intoxication of Cornelius and Baird is founded almost in its entirety upon blood alcohol tests made at the hospital to which Cornelius and Baird had been taken after the accident.

The testimony of Dr. Vernon Hittner, called as a witness for Baird, is that he came into the emergency room right after Baird was admitted to the hospital and that he was with him for 40 minutes. That he did not notice any odor of beer or any other intoxicants on Mr. Baird and had no recollection of ordering blood test made as to the alcoholic content of Baird's blood, and that his records show no such order made by him, and further that he had no reason to order such blood test taken. Dr. Hittner further testified that Baird on entry to...