Cleary v. Eckart

• Decision Date: 12 October 1926
• Citation: 191 Wis. 114,210 N.W. 267
• Parties: CLEARY v. ECKART.
• Court: Wisconsin Supreme Court

191 Wis. 114

210 N.W. 267

CLEARY

v.ECKART.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Marinette County; W. B. Quinlan, Judge.

Action by Helen Cleary against Mrs. Albert Eckart. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Action by a gratuitous occupant of an automobile to recover damages against the driver thereof for personal injuries resulting from the alleged negligent operation of the car. The plaintiff lived in Florence, Wis.; the defendant lived in Wakefield, Mich., a distance of 128 miles from Florence. They had been close friends for 20 years. Plaintiff had been visiting defendant at her home in Wakefield. Upon the time arriving for plaintiff to return to her home at Florence, the defendant offered to take her in her car, and on July 11, 1925, the trip was undertaken. Plaintiff and defendant sat in the front seat. Plaintiff's daughter and defendant's two children sat in the rear seat. About 11 o'clock they stopped for lunch. After lunch, they proceeded for about 10 miles, when they came upon a piece of graveled road. There was a light coating of gravel upon a hard pan surface. Shortly after entering upon the gravel, the defendant, who was driving, felt a bump in the rear of the car. She immediately applied the brakes to stop the car. The car skidded to the right. The right front door was thrown open, and the plaintiff was thrown from the car causing her personal injuries.

The jury found that the defendant failed to exercise ordinary care in the operation and management of the car, which failure was the proximate cause of the accident. The verdict returned also found the plaintiff guilty of contributory negligence proximately contributing to the accident. The trial court changed the answer of the jury to the question relating to contributory negligence from “Yes” to “No,” and rendered judgment in favor of the plaintiff. From that judgment defendant appeals.

Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe and Kenneth P. Grubb, both of Milwaukee, of counsel), for appellant.

Sells & Sells, of Florence (Murphy & Murphy, of Marinette, of counsel), for respondent.

OWEN, J.

The question first presented is whether the evidence justifies the finding of the jury that the defendant was negligent in the management and operation of the car. Should that question be answered in the negative, it will be unnecessary to consider whether the court was justified in changing the answer of the jury to the question relating to contributory negligence.

There is no claim made that the defendant drove at an excessive rate of speed, or that she was inattentive in any manner to her duties in the matter of driving the car. It is not claimed that she was reckless in any respect. The only negligence relied upon is that it was not proper for her to bring the car to a sudden stop upon the graveled road. So-called experts were permitted to testify that the sudden application of brakes upon a graveled road, especially with a flat balloon tire, was likely to produce a skidding of the car, and that such action did not constitute proper driving.

The relation existing between the plaintiff and the defendant was the typical relation of host and guest. This court has held that under such circumstances it is the duty of the host or driver to exercise ordinary care to prevent injury to the guest. Mitchell v. Raymond, 181 Wis. 591, 599, 195 N. W. 855. This is the general rule. Huddy, Automobiles, p. 877 et seq.; Berry, Automobiles, § 606; 20 A. L. R. note, 1014. In all of the cases bearing upon this subject coming to our attention, the negligence which was held to constitute liability on the part of the host was in the nature of reckless driving, inattention, and the like. In no case that we have been able to find did the negligence creating liability consist in a mere lack of skill or experience. Because a rule of law holding the defendant liable in this case seems unduly harsh, we have given this question our most serious consideration.

[1] It is well settled that the guest must accept the premises of the host as he finds them; it being only the duty of the host to warn the guest of lurking dangers. Greenfield v. Miller, 173 Wis. 184, 180 N. W. 834, 12 A. L. R. 982;O'Shea v. Lavoy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008. Consequently it was held in O'Shea v. Lavoy that the host was not liable for injuries resulting from a defect in an automobile of which he had no notice. In many of the cases it is said that the duty of the host is to exercise ordinary care not to increase the danger to the guest or to create a new danger. Patnode v. Foote, 153 App. Div. 494, 138 N. Y. S. 221;Avery v. Thompson, 117 Me. 120, 103 A. 4, L. R. A. 1918D, 205, Ann. Cas. 1918E, 1122;Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319, 50 L. R. A. (N. S.) 1100, Ann. Cas. 1915D, 342;Fitzjarrell v. Boyd, 123 Md. 497, 91 A. 547.Greenfield v. Miller, 173 Wis. 184, 180 N. W. 834, 12 A. L. R. 982, and O'Shea v. Lavoy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008, are to the same effect. In the latter case it was said:

“The guest has no right to a greater security than that enjoyed by the host or other members of his family. The host simply places the premises which he has to offer at the disposal and enjoyment of his guest upon equal terms of security.”

Perhaps the language used in Mitchell v. Raymond, 181 Wis. 591, 599, 195 N. W. 855 is subject to a broader construction. It was there said that:

“As to the gratuitous guest in a vehicle on a public highway, the owner or driver of such vehicle owes to such guest the duty of exercising ordinary care to avoid personal injury to him, and for a breach of such duty and consequent injury the host can be held for the resulting damages.”

[2] That language must be construed, however, with reference to the fundamental relation existing between host and guest, which has been defined by this court to be that of licensor and licensee, and to the duties springing from that relationship, which we believe is most tersely and correctly expressed in the cases above cited and approved and...