Canzoneri v. Heckert

• Decision Date: 10 November 1936
• Citation: 269 N.W. 716,223 Wis. 25
• Parties: CANZONERI v. HECKERT et al.
• Court: Wisconsin Supreme Court

223 Wis. 25

269 N.W. 716

CANZONERI

v.HECKERT et al.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Appeal from a judgment of the Circuit Court for Kenosha County; E. B. Belden, Judge.

Reversed.

Action by Mary Canzoneri against Charles Heckert and his insurer commenced June 29, 1935, to recover for injuries sustained in a collision of automobiles. From a judgment of nonsuit, entered February 8, 1936, the plaintiff appeals. The material facts are stated in the opinion.David L. Phillips, of Kenosha (N. Roy Beller, of Chicago, Ill., of counsel), for appellant.

L. E. Vaudreuil, of Kenosha, and Regan & McCue, of Milwaukee, for respondent.

FOWLER, Justice.

This is an automobile collision case. In the opinion we treat the companion cases of other occupants of the car in which plaintiff was riding, which were tried with the case of plaintiff. The trial court granted a nonsuit. The grounds stated were (1) that there was “no evidence of probative value” as to negligence of the defendant; (2) that negligence of the driver of the car in which the plaintiffs were riding was the proximate cause of the collision; and (3) that each of the plaintiffs was chargeable with his negligence.

[1] (1) The collision involved occurred at the intersection of two state trunk highways, each of which was surfaced with concrete. The car in which plaintiffs were riding was going north. The defendant's car was going west. There was a stop sign on the north and south road. The evidence is without dispute that skidmarks 110 feet in length led back from where defendant's car stopped. A skid mark of 110 feet indicates that the car traveled that distance with the wheels locked. It also indicates that when the brakes were applied the car was going at a speed that may be deemed excessive under the circumstances. There was an embankment at the southeast corner of the intersection, the top of which was slightly over 4 feet above the center of the intersection at the right of the Plymouth car (in which plaintiffs were riding) and from 4 to 6 1/3 feet above it at the left of the Nash car (in which defendant was riding). Seventy feet south of the east and west road and 40 feet east of the north and south road there was a house over 45 feet in dimension north and south. There were four trees and three electric transmission poles scattered around at places above the embankment that at different points on the highways would obstruct the views of drivers. The corner was one that required each driver to travel at such speed that he could stop within one-half the distance that he could see approaching traffic. Section 85.40(4), Stats. This made it a jury question whether the defendant was negligent as to speed that contributed to the collision. So also, apparently is the question of his lookout, and perhaps that of management of his car in not turning to pass behind the other car.

[2] The trial judge was of opinion that the driver of the Plymouth car was negligent as to speed and as to lookout. We consider that his opinion that the Plymouth car was going at an excessive speed as matter of law was not justified in view of the testimony of its occupants. Four of them testified that the car stopped a short distance from the intersection. The rear of the car was struck by defendant's car. If the car stopped before entering the intersection, and the jury might have believed that it did, it could not have gained a speed that under the circumstances could be deemed excessive when it was struck. The court considered that the physical facts showed it was going at an excessive rate and rendered the testimony of its occupants incredible. These facts were the distance the car traveled and the gyrations it made after being struck. On being struck it veered off to the northwest and made a turn or two on the grounds of a filling station at the northwest corner of the intersection before coming to a stop about 6 feet west of the concrete on the north and south road and 60 feet north of the center of the east and west road. But this might reasonably have been attributed by the jury to an unconscious pressing of the accelerator and loss of control through the rear being suddenly pushed west rather than to excessive speed when it was struck or theretofore.

[3][4] (2) The trial judge's inference as to want of proper lookout by the driver of the Plymouth car was justified. The Nash car had the statutory right of way. Section 85.18(1), Stats. It was the duty of the driver of the Plymouth to look to his right at a point where his view down the intersecting road was unobstructed before venturing to cross it, even if the defendant had forfeited his right of way by excessive speed. Wallace v. Pafke, 201 Wis. 285, 229 N.W. 58;Neuser v. Thelen, 209 Wis. 262, 244 N.W. 801;Teas v. Eisenlord, 215 Wis. 455, 253 N.W. 795;Whyte v. Lindblom, 216 Wis. 21, 255 N.W. 265, 256 N.W. 244.

[5] (3) (a) Having reached the conclusion that the driver of the Plymouth car was negligent, the trial judge imputed his negligence to the occupants of the car, because, as he concluded, they were all engaged in a joint adventure and the driver of the car was the agent of each of them.

The facts as to joint adventure are that the occupants of the car all lived in Chicago. In the car were Peter Canale and his wife, Vitina, plaintiffs in the other case. Two children of the Canales were to be confirmed at a church in Milwaukee. The father was intending to go by train to attend the confirmation services. Mrs. Canzoneri is a sister of Mr. Canales and the families are intimate associates. Nick Canzoneri, the driver of the Plymouth, wanted to go with his uncle to the confirmation of his cousins. The uncle said he might go with him if he had the railroad fare. Nick then asked another plaintiff, Vito Nepi, a friend of both families, for the use of his car to make the trip and Nepi loaned it to him for that purpose. Nick told the Canales he had borrowed the car and Peter concluded to go in the car and take along his wife and three children. Nick told his mother of the trip and asked her to go along also and she concluded to go for the ride and took along one of her other children. All of these people were in the car. Under these circumstances, is the driver of the car to be considered as the agent of the other occupants, or are the other occupants to be considered as passengers in the car, the guests of the driver? Appellant's counsel cites Krause v. Hall, 195 Wis. 565, 217 N.W. 290,Brubaker v. Iowa County, 174 Wis. 574, 575, 183 N.W. 690, 18 A.L.R. 303,Hahn v. Smith, 215 Wis. 277, 254 N.W. 750,Fischbach v. Wanta, 212 Wis. 638, 250 N.W. 387, and Sommerfield v. Flury, 198 Wis. 163, 223 N.W. 408, in support of the proposition that they are guests.

The case mostly closely analogous is that of Sommerfield v. Flury, supra. In that case the driver of an automobile was using his own car to go to help put out a fire and several persons were in the car all going to the fire for the same purpose. None of the parties had any interest in the burning property. The occupants of the car were held not to be engaged in a joint adventure, but the relation between the driver and the other occupants was held to be that of host and guest. In the instant case had Nick been the owner of the car he was driving, the analogy between this case and the case cited would be exact. There is no question under the evidence that the car was loaned to Nick, not to the Canales. Does the fact that Nick borrowed the car change the situation? Would it have made any difference in the Flury Case if the driver had not been driving his own car, but a car which the owner had permitted him to take for the trip to the fire? We cannot see that it would. We are of opinion that Nick was not the agent of the occupants, but that the occupants must be considered as his guests. The matter is thoroughly treated in the Flury Case and there is no need of further discussion of it. We do not see that the cases cited by respondent, Gehloff v. Kandler, 204 Wis. 464, 234 N.W. 717,Schmidt v. Leary, 213 Wis. 587, 252 N.W. 151, and Georgeson v. Nielsen, 214 Wis. 191, 252 N.W. 576, in any way conflict with the rule of the Flury Case. Each of these cases is clearly distinguishable by reason of some controlling fact.

[6][7] (b) If the Flury Case rules this one, then the question of the negligence of the guests as to lookout, etc., at the time of the collision was for the jury. They were not held to the same degree of diligence of lookout as the driver. Tomberlin v. Chicago, St. P. M. & O. R. Co., 208 Wis. 30, 242 N.W. 677, 243 N.W. 208. We conclude that the trial court was wrong in imputing Nick's negligence to the occupants of the car on the ground of joint adventure and consequent agency.

[8] (c) The plaintiff, Vito Nepi, the owner of the Plymouth car, sues to recover for the injuries his car received in the collision. He was not in the car. The trip was not his or for his benefit. He is not responsible for the negligence of the driver of the car under the principle of respondeat superior. Zurn v. Whatley, 213 Wis. 365, 251 N.W. 435;Brochu et al. v. Taylor et al. (Wis.) 269 N.W. 711, decided November 10, 1936. Nick's negligence not being attributable to him on that principle, he is not necessarily contributorily negligent merely because Nick's negligence caused the collision.

The trial judge based the nonsuit as to him upon the ground that the driver of the car was only fifteen years old at the time of the accident, and had no driver's license. Does the fact that Nepi loaned the car to a boy who did not have a driver's license coupled with the fact of the boy's negligence bar or otherwise affect his right of recovery? The appellant claims that it does not, and the respondents that it does. Neither cites any authority in support of his position upon this question.

Section 85.08, Stats., is relied on by respondents as so barring or affecting Nepi. The statute prohibits...