Brockhaus v. Neuman

• Citation: 228 N.W. 477,201 Wis. 57
• Parties: BROCKHAUS v. NEUMAN.
• Decision Date: 07 January 1930
• Court: Wisconsin Supreme Court

201 Wis. 57

228 N.W. 477

BROCKHAUS

v.NEUMAN.^a1

Supreme Court of Wisconsin.

Jan. 7, 1930.

Appeal from a judgment of the Municipal Court for Outagamie County; Theodore Berg, Judge.

Action by Herman Brockhaus against Harvey Neuman. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

Action begun May 10, 1928; judgment entered February 19, 1929. Automobile accident. The accident in question occurred at a turn in state highway No. 26 on a gravel road at a point a few miles north of Waupun. The defendant was driving a light six Studebaker touring car, and the plaintiff was sitting on the right side of the front seat. The rear seat was occupied by John Femal and Ronald Reetz. All of the parties lived at Appleton, Wis., and had driven from Appleton to Waupun on the morning of September 24, 1927, to see a football game between two high school teams. The accident occurred on the return trip and at about 4:45 p. m. The party left Waupun at 4:30 p. m., and expected to reach Appleton by 6:30 p. m., a distance of 52 miles. The party left Appleton about 11 o'clock a. m., and reached Waupun at 1 p. m., driving south over the same road. All of the parties expected the return trip to be made in the same time as was made on the trip out, because it was known to all that the defendant had to be in Appleton at 6:30 p. m. to play in an orchestra.

The trip was made at the suggestion of the defendant, who met the plaintiff, and suggested to the plaintiff that he get two other persons to go with them. Plaintiff then secured Femal and Reetz. The plaintiff testified that they had been traveling on the gravel road for about 2 miles before the accident happened; that defendant was driving between 35 and 40 miles per hour; that the defendant passed a Ford coupé on an upgrade traveling at the rate of 40 to 45 miles per hour; the defendant reached the top of the grade or hill, when he swung to the right side of the road. As the car reached the top of the hill, the plaintiff looked ahead and saw the curve in the road about 100 feet away. The defendant had applied his brakes, but was unable to make the turn. The plaintiff yelled, “Here we go!” The car skidded and struck the bank on the left side of the road. A wheel was broken, and the car turned over.

The case was submitted to the jury upon a special verdict. The jury found, first, that the defendant failed to exercise ordinary care in the operation of his automobile, so as to increase the danger to the plaintiff beyond what the plaintiff ought reasonably to have expected; second, that plaintiff's injuries were the natural and probable result of such want of ordinary care; third, that the defendant should reasonably have foreseen that injury to the plaintiff might probably follow from such want of ordinary care; fourth, that the plaintiff did not fail to exercise ordinary care in (a) keeping a sufficient look-out; (b) in failing to protest against the manner in which the car was operated (questions 5 and 5a were not answered); sixth, that the plaintiff did not assume the risk of the manner in which the car was being operated; and seventh, assessed the plaintiff's damages at $150. There were the usual motions after verdict. Judgment was entered for the plaintiff upon the verdict, from which the defendant appeals.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

Benton, Bosser & Tuttrup, of Appleton, for respondent.

ROSENBERRY, C. J.

It is the position of the defendant th...