Havens v. Havens

Decision Date02 March 1954
Citation63 N.W.2d 86,47 A.L.R.2d 1,266 Wis. 282
Parties, 47 A.L.R.2d 1 HAVENS, v. HAVENS.
CourtWisconsin Supreme Court

This is an action by Mrs. Harry Havens as plaintiff commenced April 9, 1952, against Harry Havens, her husband, to recover for personal injuries sustained when the car owned by her and driven by her husband collided with a car driven by Alvin Miner. Said Miner, named as defendant, however, had never been served with a summons, made no appearance herein and is not a party to this appeal. The action was tried to the court and a jury and a special verdict rendered. The court found Alvin Miner causally negligent as to lookout, speed, and with respect to his position on the highway and as to control and management. The jury found the defendant, Harry Havens causally negligent with respect to increasing the dangers assumed by the plaintiff regarding speed, control, and management. The jury also found that the negligence of Harry Havens was not the result of lack of skill or judgment on his part. Damages were assessed at $8,700 for personal injuries and $1,275 property damage to plaintiff's automobile. Besides the usual motions after verdict the defendant sought a change of answers to the special verdict so as to find that the defendant was not negligent as to speed and management and that his conduct was the result of lack of skill or judgment. The court denied defendant's motions and ordered judgment upon the verdict. Judgment was entered August 20, 1953. This appeal is from said judgment.

Langer & Cross, Baraboo, for appellant.

Hill, Miller & Hill, Baraboo, for respondent.

STEINLE, Justice.

Appellant contends that the emergency doctrine is applicable to him as a matter of law for the reason that while he was proceeding with due care he was suddenly confronted with a car 250 to 500 feet away, approaching him on the wrong side of the road and coming toward him at a high rate of speed. He urges that he ought not be held negligent because he turned to the left side of the road at the last instant in an attempt to avoid a head-on collision. He maintains too, that he ought not be held liable to his wife for his action deliberately taken, as a pure exercise of judgment, in choosing between alternative avenues of escape. It is also the position of the appellant that under the circumstances he was not negligent as to speed or that if such finding must be maintained against him then, that the plaintiff assumed the risk. Error is also alleged because the trial court did not submit to the jury certain questions pertaining to the failure of the wife to warn her husband of the danger ahead as well as questions affecting her assumption of risk,--questions of that kind having been specifically requested. Error is also claimed as to certain of the court's instructions.

The collision occurred at about 4:00 a. m. on July 9, 1950, at a point on U. S. Highway 12 approximately 18 miles north of Baraboo. The 20 feet concrete highway in the immediate vicinity of the collision was straight, level, dry, in perfect condition, and passed through open country in a generally east-west direction. A shoulder 10 feet wide extended south from the edge of the pavement.

Mr. and Mrs. Havens were returning to their home in Chicago from a trip to Minnesota. The weather was clear, it was starting to get light and as testified by the plaintiff, 'it was sort of on the grayish side.' The headlights on the car were lit. On the night of July 8th the couple had stayed at Mauston, about 15 miles away. They retired at 11:00 p. m., arose at 3:00 a. m., and resumed their journey. They were awake, alert and both watched the road ahead. Shortly before the collision they were travelling about 40 to 50 miles per hour in an easterly direction and in proper lane. This was the same rate of speed or a little slower than that at which the husband customarily drove generally as well as on this particular trip. The wife testified that she made no protest as to his speed, that she was satisfied with it and that in her opinion the husband was not driving too fast under existing circumstances. Shortly before the accident the husband observed the lights of a car that was following them. However, he did not know how close behind him that car was coming. As husband and wife were looking ahead they both at the same time observed the car driven by Alvin Miner as it approached them from the east. It was travelling fast and their estimate of its speed was 60 miles per hour. It came toward them on the wrong side of the road, swayed from side to side in their lane and partly on the south shoulder. It did not slow down. When it was a car length away and immediately in front of the Havens car, the husband swung his car sharply to the left and at about the same time Alvin Miner turned his car toward his right. The collision occurred approximately at the center of the highway.

The wife testified that the car driven by Miner was about 400 to 500 feet away when it first came over on their side of the highway. The husband, in his testimony, stated that his first observation was that of the headlights of the car that was coming toward them. The husband said: 'He (Miner) was on his right side of the road when I first saw him, about 500 feet I'd say, and then he crossed over on my side of the road * * * (when it first came over unto my side of the road) it was between 250 to 500 feet to the best of my knowledge.'

The husband testified that when he first observed the car driven by Miner approaching on the Havens' side of the road, he released the accelerator, blew his horn twice, and applied his brakes lightly. Mrs. Havens said that after she first observed the car coming down the wrong side of the road toward them she watched it intently and also looked at her husband. She had no idea as to what the other driver would do and her thoughts were as to what her husband was going to do. She did not speak to her husband,--depended upon him. She thought he would turn to the right and onto the shoulder.

Neither husband nor wife recalled that the husband applied his brakes hard before the crash. A police officer testified that he found a skid mark measuring 42 feet in length, apparently from the...

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19 cases
  • Garland v. Wilcox
    • United States
    • Oregon Supreme Court
    • January 27, 1960
    ...automobile or sooner tried to turn off the road through a ditch six to eight feet deep. Hamilton v. Finch, supra; Havens v. Havens, 266 Wis. 282, 63 N.W.2d 86, 47 A.L.R.2d 1. I would affirm the judgment of the learned circuit ...
  • Jewell v. Schmidt
    • United States
    • Wisconsin Supreme Court
    • June 4, 1957
    ...Hoehne v. Mittelstadt, 1947, 252 Wis. 170, 31 N.W.2d 150; Roberts v. Knorr, 1951, 260 Wis. 288, 50 N.W.2d 374; Havens v. Havens, 1954, 266 Wis. 282, 63 N.W.2d 86, 47 A.L.R.2d 1; Bachmann v. Bollig, 1955, 270 Wis. 82, 70 N.W.2d 216; and Mlinar v. Olson Transportation Co., 1955, 270 Wis. 622,......
  • Cook v. Thomas
    • United States
    • Wisconsin Supreme Court
    • November 24, 1964
    ...Four seconds, Papacosta v. Papacosta (1957), 2 Wis.2d 175, 85 N.W.2d 790; three and one half seconds, Havens v. Havens (1954), 266 Wis. 282, 63 N.W.2d 86, 47 A.L.R.2d 1; three seconds, Schumacher v. Klabunde (1963), 19 Wis.2d 83, 119 N.W.2d 457; two and one half seconds, Hoehne v. Mittelsta......
  • Pickett v. Travelers Indemnity Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 7, 1960
    ...appear in retrospect that he did not make the wisest possible choice. Thorp v. Landsaw, 254 Wis. 1, 35 N.W.2d 307; Havens v. Havens, 266 Wis. 282, 63 N.W.2d 86, 47 A.L.R.2d 1. The court said in the Thorpe case that there are three questions presented whenever the emergency doctrine is invok......
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