Biersach v. Wechselberg

• Decision Date: 10 November 1931
• Citation: 238 N.W. 905,206 Wis. 113
• Parties: BIERSACH ET AL. v. WECHSELBERG ET AL.
• Court: Wisconsin Supreme Court

206 Wis. 113

238 N.W. 905

BIERSACH ET AL.

v.WECHSELBERG ET AL.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court of Milwaukee County; Gustave G. Gehrz, Circuit Judge.

Action by Edward J. Biersach and others against Phil C. Wechselberg and others. Judgment for plaintiffs, and defendants appeal.--[By Editorial Staff.]

Reversed and remanded.

Action begun May 1, 1929; judgment entered March 28, 1931. It appears that Biersach, the plaintiff, was directed to look up the defendant Wechselberg and investigate a discrepancy of $40 in the accounts of Biersach and the company, of which Wechselberg was a representative. This required an inspection by Wechselberg of the installation at Brown Deer, a point some few miles north of Milwaukee. Without prior arrangement, the plaintiff met the defendant Wechselberg at the East Side Palm Garden about 5:30 in the afternoon. The plaintiff and the defendant Wechselberg and a friend of Wechselberg by the name of Graham left in Wechselberg's car to go to the point in question, Wechselberg driving, his friend Graham sitting on the seat beside him, and the plaintiff occupying the rear seat. Prior to that time the plaintiff had never ridden with Wechselberg except twice in the city. The plaintiff had no fault to find with the driving within the city limits, but after leaving the city limits, Wechselberg increased his speed to forty-five or fifty miles an hour and the plaintiff protested and told him to take it easy. After visiting the station where the installation was, they returned and on the way stopped at Koeller's dance hall. There the matter of fast driving was again discussed and the plaintiff told Wechselberg he did not care to ride that fast and Wechselberg replied: “You probably aint used to riding in a fast car.” They then resumed their journey, proceeding as before, and when about two or three miles from Koeller's, Wechselberg increased his speed to a high rate. Both Biersach and Graham protested, but Wechselberg persisted, and in attempting to make an S turn, the car left the pavement and the plaintiff sustained the injuries complained of.

The case was submitted to the jury, which returned the following verdict:

“Special Verdict.

First Question: Did the defendant, Phil C. Wechselberg, as he approached the place where his automobile left the pavement, fail to exercise ordinary care

(a) In respect to the speed at which he was driving the automobile? Answer: Yes. Dissent: Geo. Leonard.

(b) In respect to his control of his automobile? Answer: Yes. Dissent: Geo. Leonard, Harry Seefeld.

Second Question: If you answer either subdivision of the first question ‘Yes', then answer this question:

Was any failure to exercise ordinary care on the part of the defendant Wechselberg found by you in answer to said first question an efficient cause that produced, as a natural result, the injuries of the plaintiff, Edward J. Biersach

(a) In respect to the speed at which defendant was driving his automobile? Answer: Yes. Dissent: Geo. Leonard.

(b) In respect to defendant's control of his automobile? Answer: Yes. Dissent: Harry Seefeld, Geo. Leonard.

Third Question: Did any failure on the part of the plaintiff Biersach to exercise ordinary care for his own safety proximately contribute to produce the injuries he sustained?

Answer: No. Dissent: Alice H. Loebe, Geo. Leonard.

Fourth Question: If the Court should be of the opinion that the plaintiffs are entitled to recover, at what sum do you assess the damages which resulted to the plaintiff Biersach from the injuries sustained by him upon the occasion in question?

Answer: $3500.00. Dissent: Malinda Melzer, Geo. Leonard.”

From the judgment entered accordingly, the defendants appeal.Hannan, Johnson & Goldschmidt, of Milwaukee (Whaley & Paulsen, of Racine, of counsel), for appellants.

Hess, Barry & Meldman, of Milwaukee (Edward H. Meldman and Clement W. Winzenburg, both of Milwaukee, of counsel), for respondents.

ROSENBERRY, C. J.

It is first urged that by continuing to ride with the defendant Wechselberg, and especially the failure of the plaintiff to leave the car at Koeller's dance hall, plaintiff assumed the risk due to Wechselberg's careless driving as a matter of law. In view of the fact that there must be a new trial we shall not discuss the evidence, it being considered that there is evidence sufficient to sustain the verdict.

It is next urged that the trial court erred in instructing the jury in respect to the assumption of risk and contributory negligence. It is to be noted that the matter of contributory negligence was submitted by the third question. The defendants asked to have the question relating to contributory negligence divided so as to require the jury to find whether or not the plaintiff was negligent with respect to riding in the car because of the alcoholic beverages which Wechselberg had consumed, in failing to make proper remonstrances, and in continuing to ride in the defendant Wechselberg's car after observing the rate of speed.

With respect to contributory negligence, the court instructed the jury as follows:

“The third question reads as follows: Did any failure on the part of the plaintiff Biersachto exercise ordinary care for his own safety proximately contribute to produce the injuries he sustained?

The burden of proof to establish the affirmative of this question is upon the defendant Wechselberg.

In connection with this question you are instructed that a guest or passenger in an automobile is required to use ordinary care for his own safety, that is to say, the care ordinarily exercised by the great mass of mankind, or its type, the ordinarily prudent person, under the same or similar circumstances. A passenger, if he sees that the driver is driving in a manner inconsistent with the exercise of ordinary care, should make protest in such manner as would an ordinarily prudent and diligent person, after he has become, or in the exercise of ordinary care ought to have become, aware of the driver's conduct in that respect. But, on the other hand, it may be equally true that, under all the circumstances, much advice and many suggestions to the driver by some other occupant of the car is not conducive to the best management of the car. But a passenger in an automobile operated by another is bound to exercise ordinary care for his own safety, and to take such steps as the reasonably prudent person would take under the same or similar circumstances. Such passenger may not sit idly by and...