Hutzler v. McDonnell

• Decision Date: 10 February 1942
• Citation: 239 Wis. 568,2 N.W.2d 207
• Parties: HUTZLER v. McDONNELL et al.
• Court: Wisconsin Supreme Court

239 Wis. 568

2 N.W.2d 207

HUTZLER

v.McDONNELL et al.

Supreme Court of Wisconsin.

Feb. 10, 1942.

Appeal from a judgment of nonsuit of the Circuit Court for La Crosse County; Robert S. Cowie, Judge.

Action for personal injuries by Kathleen Hutzler against James McDonnell and others. From a judgment of nonsuit, plaintiff appeals.-[By Editorial Staff.]

Reversed and remanded.

This was an action commenced by plaintiff-appellant March 26, 1941, against defendants-respondents for damages sustained by the plaintiff in an automobile accident in the state of Minnesota on the 17th day of November, 1940, while plaintiff was a guest of the defendant, McDonnell. The plaintiff alleged that McDonnell, her host, was negligent as to lookout and as to management and control of his car. The defense was based upon assumption of risk by the plaintiff and freedom from negligence. At the close of the plaintiff's testimony the court granted a nonsuit. Before entry of judgment, plaintiff moved for a new trial upon the following grounds: (a) In the interests of justice; (b) because the court erred in granting defendant's motion for a nonsuit; and (c) because of error on the trial. On May 8, 1941, the court entered an order denying the motion for a new trial, and on said date judgment was entered dismissing the complaint with costs. The plaintiff appeals. The material facts will be stated in the opinion.

Gordon, Law, Brody & Johns, of La Crosse, for appellant.

Hale & Skemp, of La Crosse, for respondents.

MARTIN, Justice.

The plaintiff contends that the court erred: (1) In finding that defendant was not negligent as to lookout; (2) in finding that defendant was not negligent as to management and control of his car; (3) in finding that plaintiff assumed the risk incident to defendant's management and control of the car; and (4) in granting defendant's motion for a nonsuit.

The material facts are not in dispute. In brief, they are as follows: On the afternoon of November 16, 1940, Mr. McDonnell invited plaintiff to accompany him and one John White on an auto trip to Winona, Minnesota, in the evening of said date. Plaintiff accepted the invitation and the party left La Crosse for Winona at about 7:30 p. m. When they arrived at Winona, a distance of about twenty-eight miles from La Crosse, they were joined by a lady friend of Mr. White. It appears that the party of four spent the evening of the 16th and the early morning hours of the 17th at various nightclubs in the vicinity of Winona. At these clubs they danced and had some highballs. There is no evidence that any of the members of the party were under the influence of liquor. At about 3:30 a. m., after leaving Mr. White's lady friend at her home in Winona, the other members of the party started back to La Crosse. On this trip defendant McDonnell was driving a Plymouth coupe, the plaintiff was seated in the middle, and Mr. White was to her right. The plaintiff testified: “I am not acquainted with the highway, so I do not know exactly where the accident happened. We were driving along, the radio was playing and nobody was saying anything at the time. I was gazing out the window. I saw something on the road. I would say it was about two-thirds of a block away when I first noticed it. I thought it was calves, cattle, livestock, or something of the kind, but I couldn't distinguish it. I didn't pay any attention at first until I noticed that McDonnell wasn't slowing down. Evidently he didn't see them. I hollered, and when I hollered he jerked like to give a start. Then the car swerved a little bit and turned off to the right into the ditch. I don't remember what happened to me in the upset, because I lost consciousness and didn't regain it until I was in the hospital.”

The objects which plaintiff saw upon the highway turned out to be two deer. McDonnell testified that the road was straight and level for one-fifth of a mile north of the scene of the accident; that the head-lights on his car were in good working condition; that as he drove down the highway he saw the two deer when he was about one hundred fifty feet away from them; that one was in his lane of travel, standing broadside across the lane of travel; that the other was in the left-hand lane, standing right in the middle of the lane of travel. He further testified: “I didn't do anything about it until I was about seventy-five feet away from them, that is, I was that close before I turned or before I applied my brakes. In the meantime no one in the car made an outcry before I saw the deer. I don't remember anybody saying anything afterward. I was too busy driving. I don't know whether, if I had applied my brake immediately upon seeing the deer, I could have stopped my car in time to have avoided the deer and avoided running off the highway.”

He further testified that he was driving about fifty miles an hour when he first saw the deer. He did nothing about changing the course of his car or the speed until he got within seventy-five feet of the point at which the deer were standing. Plaintiff testified that the two deer were in the center of the highway; that there was room to pass on either side without getting into the ditch.

In granting defendant's motion for a nonsuit the court said:

“Driving on that highway at forty or fifty miles an hour at that hour in the morning is not in itself negligence, and the laws of Minnesota hold as a matter of law it isn't negligence at that particular speed, but at any rate it was the usual and average speed that he (McDonnell) had been driving. He was confronted suddenly, unexpectedly with a sudden emergency, which consisted of the fact that a couple of deer had wandered in the line of traffic. How long they had been there doesn't appear. The assumption is a very strong one that on a heavily traveled highway of that kind, deer don't stand there very long. It is a fair assumption and presumption on the part of the court that those deer momentarily appeared on that highway in the line of vision of the driver of the car. Whether or not if he had gone straight ahead or turned to the left or to the right he could have avoided those deer is something no human being can testify to, because of the natural known habits of a wild animal of that kind. They are liable to turn any way.

“About the only thing a driver of a car confronted with an emergency of that kind could do, this driver admittedly did, that is put on his brakes and turned to the right. ...