Frey v. Dick

• Decision Date: 01 May 1956
• Citation: 76 N.W.2d 716,273 Wis. 1
• Parties: Edward FREY, Appellant, v. Cecil DICK et al., Respondents.
• Court: Wisconsin Supreme Court

Page 716

76 N.W.2d 716

273 Wis. 1

Edward FREY, Appellant, v. Cecil DICK et al., Respondents.

Supreme Court of Wisconsin.

May 1, 1956.

Rehearing Denied June 22, 1956.

See 77 N.W.2d 609.

Lepp & Phillips, Kenosha, for appellant.

Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, for respondents.

CURRIE, Justice.

Counsel for the plaintiff Frey seek reversal on this appeal on the ground that the negligent speed and lookout on the part of the host Dick were momentary in character and could not be assumed by the guest as a matter of law. In support of such position there are cited the cases of Diersen v. Staven, 1956, 271 Wis. 519, 74 N.W.2d 158; Wibbeler v. Reed, 1953, 265 Wis. 141, 60 N.W.2d 700; and Wheeler v. Rural Mut. Casualty Ins. Co., 1952, 261 Wis. 528, 53 N.W.2d 190.

Ordinarily it is true that negligent lookout on the part of a host driver is momentary in character, and, when such is the case, the risk thereof is not assumed by the guest. Likewise the failure of Dick to reduce his speed to 30 miles per hour as he approached the curve was also conduct which had not been persisted in long enough to give rise to an assumption of such risk by Frey if there is ignored the testimony relating to the drinking. However, if Dick's negligent lookout and speed were the result of the consumption by him of intoxicating liquor, which drinking was known to Frey when he entered the car, then there would be an assumption of the risk of such negligence by Frey.

This brings us to the crux of the case of whether the jury could consider the evidence of Dick's drinking of intoxicants in answering the questions of the verdict with respect to Dick's negligence and Frey's assumption of the risk. On the basis of Dick's own testimony, the jury well could have concluded that he and Frey had each consumed six drinks of bourdon and sour in the presence of each other in a period of less than two hours preceding the accident. Counsel for the plaintiff contend that such evidence of drinking must be entirely disregarded by this court, in passing upon the issue of assumption of risk, because of the jury's answer of 'No' to question 1 of the verdict, which inquired as to whether Dick was operating his automobile while under the influence of intoxicating liquor.

We would be inclined to agree with this contention if the jury had been instructed not to consider such evidence of drinking in answering the negligence and assumption of risk questions if they answered question 1 'No'. However, we find upon examining the charge that the jury not only were not so instructed but on the contrary were told that they might consider such evidence of drinking in answering the negligence questions. This is readily apparent from the following quoted portion of the charge:

'Sec. 85.13(1) of the Wisconsin statutes provides that it shall be unlawful for any person who is under the influence of intoxicating liquor to operate any vehicle on any highway. A driver of an automobile is under the influence of intoxicating liquor within the meaning of this statute when his indulgence in the use of intoxicating liquor is such as to result in an appreciable interference of the exercise by him of ordinary care in the management of such vehicle.

'Testimony has been received with respect to indulgence by both parties in intoxicating liquor. This testimony you may consider together with all other facts and circumstances shown by the evidence in determining whether or not Cecil Dick was negligent. The nature or extent of indulgence of The intoxicating liquor may be considered by you in determining whether or not the plaintiff, Edward Frey, failed to use ordinary care for his own safety.'

The jury were also instructed further on the issue of whether Frey assumed the risk of Dick's negligent speed and lookout as follows:

'The negligence, if any, of the host which the guest does not assume is the momentary act or non-action of the host of which the guest has had no knowledge and as to which the guest has had no opportunity to protest or object.'

In view of this last quoted sentence from the trial court's instructions, we are warranted in assuming that the jury did not disregard the same when they answered 'Yes' to the two subdivisions of question 4 thereby finding that Frey did assume the risk of Dick's negligent speed and lookout. Such answers are also entirely consistent with that part...