Haines v. Duffy

• Decision Date: 22 January 1932
• Citation: 206 Wis. 193,240 N.W. 152
• Parties: HAINES v. DUFFY ET AL.
• Court: Wisconsin Supreme Court

206 Wis. 193

240 N.W. 152

HAINES

v.DUFFY ET AL.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Supplemental Opinion Jan. 22, 1932.

Appeals from a judgment of the Circuit Court for Buffalo County; George Thompson, Circuit Judge. Affirmed.

Action commenced by the plaintiff, Armella Haines, on the 16th day of September, 1929, against the defendants Marie Duffy, as administratrix of the estate of William Duffy, and Elmer Bess, to recover damages for injuries sustained in an automobile accident. From a judgment in favor of the plaintiff entered on the 8th day of December, 1930, the defendants severally appeal.Richmond, Jackman, Wilkie & Toebaas, of Madison, and Buehler & Buehler, of Alma (Ernest E. Watson, of Minneapolis, Minn., of counsel), for appellants.

Brown, Somsen & Sawyer, of Winona, Minn., and Grover L. Broadfoot, of Mondovi, for respondent.

OWEN, J.

On November 25, 1928, plaintiff was riding in an automobile driven and operated by the defendant Elmer Bess, between the city of Winona, Minn., and Fountain City, Wis. While on a curve, the Bess automobile collided with an automobile driven by William Duffy, the administratrix of whose estate is one of the defendants, causing plaintiff serious injuries. She brought this action against the driver of one car and against the administratrix of the driver of the other car, to recover her damages therefor.

By special verdict the jury found both drivers negligent with respect to speed, lookout, control, and yielding the right of way, which negligence constituted a proximate cause of plaintiff's injuries. The jury also found the plaintiff negligent because she failed to protest as to the speed of the Bess car as well as the manner in which the Bess car was operated. Upon motions made after verdict, the court changed the answers of the jury to the questions which found the plaintiff guilty of contributory negligence and rendered judgmentin favor of the plaintiff. This appeal presents the single question of whether the verdict of the jury finding the plaintiff guilty of contributory negligence is sustained by the evidence, and whether the trial court was justified in setting aside the verdict of the jury in such respect.

[1][2] The plaintiff was riding in the car of the defendant Bess. His negligence was not imputed to her. Reiter v. Grober, 173 Wis. 493, 181 N. W. 739, 18 A. L. R. 362. She was in duty bound, however, to exercise ordinary care for her own safety. This required her to maintain a lookout. Howe v. Corey, 172 Wis. 537, 179 N. W. 791;Belongy v. Kewaunee, Green Bay & Western Railway Company, 184 Wis. 374, 199 N. W. 384. The jury found, however, that she did maintain a lookout, and that she not only saw the Duffy car coming at a distance of approximately 500 feet, but that she called the attention of Bess to the approaching car is undisputed. She was, however, the guest of Bess, and, in order for her to recover against Bess, the law requires that she should have indicated to Bess her displeasure at the manner in which he was driving the car in certain respects. It is well settled that it was her duty to protest at an excessive or dangerous rate of speed. There is an increasing tendency to designate this failure to protest as contributory negligence. It is not strictly contributory negligence. The duty to protest grows out of the relation of host and guest, and it constitutes an essential element in the question of whether the guest may recover damages resulting from the negligence of the host. The rule is that the host owes to the guest the duty of not increasing the danger or creating a new one naturally resulting from the acceptance by the guest of the invitation extended by the host. Where the invitation is to take an automobile ride, the guest is warranted in assuming that the host will not drive at a reckless or unlawful rate of speed. However, it may suit the pleasure of both the host and guest to drive at a high rate of speed. Where this results with the acquiescence of the guest, the guest is not permitted to recover from the host. This is not because the guest is, strictly speaking, guilty of contributory negligence, or any negligence, but rather because the guest has acquiesced in the conduct of the host, and it would be against reason and justice to permit a recovery against the host under such circumstances. It is also settled that the nervous guest has nothing to do with the immediate management and control of the car. Goehmann v. National Biscuit Co. (Wis.) 235 N. W. 792.

[3][4] There is no evidence in this case that prior to the entry upon the curve Bess drove at a dangerous or excessive rate of speed. It is contended that there is evidence to furnish room for such an inference. The...