Hamus v. Weber

• Decision Date: 24 June 1929
• Citation: 199 Wis. 320,226 N.W. 392
• Parties: HAMUS v. WEBER ET AL.
• Court: Wisconsin Supreme Court

199 Wis. 320

226 N.W. 392

HAMUS

v.WEBER ET AL.

Supreme Court of Wisconsin.

June 24, 1929.

Appeal from the Circuit Court of Marathon County; A. H. Reid, Judge.

Action by Barbara Hamus against Erwin Weber and another. Judgment for plaintiff, and defendants appeal. Affirmed.--[By Editorial Staff.]

This action was commenced April 17, 1928, and judgment entered June 5, 1928. The action is by a guest for damages for injuries sustained through negligence of her host in driving an automobile in which the two were riding. The defendant was a traveling salesman, and the plaintiff a waitress in a hotel where he had stopped. The only ground of negligence charged is excessive speed. Upon a special verdict judgment went for the plaintiff. The injury occurred on a county trunk road surfaced with loose gravel and covered lightly with snow. The car was traveling 45 to 50 miles an hour at least. It swerved suddenly to the right, and the driver turned it left, and it went into the ditch, overturned completely, and was facing opposite from its direction of travel.

In going 20 miles on the trip one tire had blown and been replaced before the accident. According to the testimony, the plaintiff had protested three times against the speed, once after reaching the gravel road on which the accident occurred. She had ridden with the defendant several times before. The defendant did not slacken the speed after these protests, and continued 5 or 6 miles on the gravel, after the last protest before the car overturned. The testimony does not show whether the accident occurred from skidding on the loose gravel or from another deflated tire.Stephens, Sletteland & Sutherland, of Madison, for appellants.

Pors & Pors, of Marshfield, for respondent.

FOWLER, J.

The appellants claim the court should have granted a nonsuit or changedthe answers to the questions of the verdict respecting defendant's negligence, but in our view the case was for the jury and the evidence supports their findings. Claim is also made that, if the defendant was negligent, the plaintiff was guilty of contributory negligence, but we are of the opinion that the jury's findings in this respect are also supported by the evidence.

[1][2] Appellants also claim error in an instruction that, if the rate of speed exceeded 40 miles an hour, it should be considered unlawful and negligent unless the evidence showed that the circumstances and conditions of the highway at the time and place made it safe to operate at such greater rate. This was erroneous, as it put the burden on the defendant to show that he was not negligent. The statute, St. 1927, § 85.08(2)(b) 7, does not say that an excess of 40 miles is unlawful, or even presumptively unlawful. The 40 miles provision does nothing at all but create a presumption in favor of defendant, if his speed be less than 40 miles an hour. Without the provision the plaintiff would only have the burden of showing the speed negligent, without having to overcome any presumption. However, this error should not effect reversal. The evidence of negligence is so strong that it does not seem probable that the error could have affected the jury's finding.

[3] The defendants assign as error the method of submitting the issue of the defendant's negligence. They requested that “two separate questions on proximate cause” be submitted. The court submitted only two questions to cover the whole issue of negligence. These two questions and the general instructions given in connection are as follows:

“First Question. In operating his automobile at the time when it was overturned on the highway, on December 3, 1927, was the defendant Weber negligent in respect to speed and control of the car?

Every person is negligent, when, without intending to do any wrong, he does such an act or omits to take such a precaution that, under the circumstances present, he ought reasonably to foresee that some injury or damage might probably result from his conduct. He is in duty bound to foresee all such natural consequences of his conduct as an ordinarily prudent and intelligent person would ordinarily foresee under the then present circumstances. * * *

Second Question: If you answer the first question ‘Yes,’ then answer this: Was the defendant Weber's negligence a cause of the plaintiff's loss and injuries?

Negligence is a cause of injury or damage when it alone produces it, or co-operates with some other cause in producing it jointly as a natural result. There may be more than one cause of an injury or damage. The negligence of one person alone may produce it, or the negligence of two or more persons may jointly produce it.

It is suggested in this case that the overturning of the car may have been caused by a defective tire or by some other defective condition of the car. If it was so caused without the assistance and co-operation of any concurring negligence of the defendant Weber in the speed and manner of operating his car, then you cannot find that the defendant Weber's negligence was a cause of the plaintiff's injury and damage. The question is whether negligence of Weber in respect to his speed and control of the car was a cause--either the sole cause or one of the jointly concurring causes of the overturning of the car and the consequent injury and damage.”

The two questions and the instructions given in connection cover the issue of negligence fully as it was involved in this case. It is true the term “ordinary care” was not used, and that the idea of reasonable anticipation of injury, which is usually given as an element of proximate cause, is incorporated as an element of negligence as defined in the instruction. But if all the elements of actionable negligence are covered, it is not material where they are placed. It is correctly said in the case of United States Fidelity & Guaranty Co. v. Verbergt (Wis.) 222 N. W. 799, that reasonable anticipation has no logical connection with causation; and in Bell Lbr. Co. v. Bayfield, 169 Wis. 357, 361, 172 N. W. 955, that strictly speaking it characterizes negligence rather than causation. To the same effect is Milwaukee v. Industrial Commission, 160 Wis. 238, 246, 151 N. W. 247.

[4][5][6] And as to ordinary care, while ordinary care is such care as persons of ordinary prudence ordinarily exercise under like circumstances, it is also correct, and just as exact to say, in respect of situations such as are here involved at least, that one fails to use ordinary care when he does an act or omits a precaution when from the circumstances he ought reasonably to foresee as an ordinarily intelligent and prudent person that such act or omission may probably cause injury to another. This must be so, else the ordinarily prudent person either lacks ordinary intelligence or he willfully inflicts injury. As a matter of common sense and common knowledge, the ordinarily prudent person does not ordinarily do injury willfully; nor is he ordinarily guilty of acts or omissions that reasonably appear likely to result in injury to others. One must take ordinary care towards others, of course, but one must also take care not to do any act or omit any precaution when from the circumstances it would...