Forbes v. Forbes

• Decision Date: 11 January 1938
• Citation: 277 N.W. 112,226 Wis. 477
• Parties: FORBES v. FORBES.
• Court: Wisconsin Supreme Court

226 Wis. 477

277 N.W. 112

FORBES

v.FORBES.

Supreme Court of Wisconsin.

Jan. 11, 1938.

Appeal from a judgment of the Superior Court of Douglas County; Archibald McKay, Judge.

Affirmed.

Action brought by Marie P. Forbes against Walter A. Forbes, her husband, to recover damages for personal injuries sustained by the plaintiff as the result of the defendant's negligent operation of an automobile. Defendant denied liability, and upon a trial of the issues the jury returned a special verdict, upon which the court entered judgment for plaintiff's recovery of the damages assessed by the jury. Defendant appealed from that judgment.Hanitch, Johnson, Fritschler & Barstow, of Superior, for appellant.

Powell & Sprowls, of Superior, for respondent.

FRITZ, Justice.

On this appeal the defendant's first and second contentions are that as a matter of law the defendant was not negligent; and that the plaintiff cannot recover because she had assumed the risk of injury. The facts are not greatly in dispute. The plaintiff was injured when an automobile, in which she was a passenger and which the defendant was operating, rolled over a highway enbankment, 200 or 300 feet west of the crest of a hill on which he, traveling westward, had passed an eastbound automobile. He was an experienced driver, and his speed of 40 to 45 miles per hour as he approached the crest was not an excessive rate on the 20-foot wide oiled roadway of the state highway in question. As the automobiles approached and passed, each driver was properly on his side of the traveled roadway and had ample room to pass in safety. When the driver of the other automobile was 50 feet from the crest of the hill, he saw the defendant's automobile, but the latter failed to see that other automobile until it was so close that he became startled to such an extent that he turned abruptly on to the graveled shoulder, north of the roadway. Then, at increased speed, he crossed the crest and went a distance of 200 or 300 feet downhill, veering first to the south shoulder and then back again to the north shoulder of the road, until his automobile finally rolled down an embankment on that side.

[1] The jury found that the plaintiff's injury was caused by negligence of the defendant in respect to speed, lookout, control; by the defendant negligently increasing the danger or risk which the plaintiff assumed when she entered the car; and by his failure to exercise his best skill and judgment in the manner in which he managed and controlled his automobile. It was not claimed that the defendant was negligent in any respect prior to his failure to see the approaching automobile until it was so close that he was needlessly startled thereby when he did finally see it. In view of the evidence as to that failure, the jury could find that the defendant was negligent in not keeping a proper lookout; and that, but for that negligence, the defendant-instead of becoming so startled as to abruptly turn to his right and increase his speed-would probably have realized that the automobiles could pass safely, without any change in the course or speed of either. As the conditions which he could and should have observed in the exercise of ordinary care were such that there was in fact no emergency because of which there was any occasion or excuse for his sudden changes in the course, speed, and control of his automobile, the jury was warranted also in finding him guilty of causal negligence in each of those respects, and in failing to exercise the best skill and judgment which he possessed as a driver, and in increasing the danger or risk which the plaintiff assumed when she became a passenger.

[2][3] On the other hand, the plaintiff cannot be held to have assumed, as a matter of law, the danger or risk of injury by the defendant's negligent acts. They were committed suddenly upon his approaching and passing the other automobile, and they followed in such rapid succession that there was no time or opportunity for her to protest or leave the car to avoid injury, even if she had been awake, instead of dozing. The jury did find that she failed to exercise ordinary care for her own safety at the time of and immediately preceding the accident, and that she ought to have foreseen that injury might probably follow from such failure. However, the only basis for finding that she was negligent was the fact that she had fallen asleep. But, the jury also found that her negligence was not a cause of her injury. That was in accord with our conclusion in Schmidt v. Leuthener, 199 Wis. 567, 227 N.W. 17, that the fact that an automobile passenger was asleep and thereby prevented from giving attention to his safety did not make him guilty of contributory negligence as a matter of law. Consequently, as the jury found that there was no contributory negligence, there can be no denial of recovery by the plaintiff on that ground.

[4] But the defendant also contends that the court should have limited the plaintiff's recovery to 80 per cent. of the damages assessed by the jury, because it returned the answer “20%” to the following question in the special verdict, to...