Knipfer v. Shaw

• Decision Date: 10 January 1933
• Citation: 210 Wis. 617,246 N.W. 328
• Parties: KNIPFER v. SHAW ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 617

246 N.W. 328

KNIPFER

v.SHAW ET AL.^a1

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from a judgment of the Circuit Court for Kenosha County; Arold F. Murphy, Circuit Judge.

Action by Marie Knipfer against John C. Shaw, and another. From a judgment for plaintiff, both defendants appeal.--[By Editorial Staff.]

Reversed, with directions.

This action was commenced January 10, 1931, against John C. Shaw to recover damages for injuries sustained by the plaintiff as a result of a collision between an automobile driven by her husband, Joseph Knipfer, in which she was riding, and an automobile driven by Shaw. Thereafter, on motion of defendant Shaw, Knipfer was made a party defendant. The accident occurred at about ten o'clock at night on State Highway 50, an east and west concrete road, at a point where it was straight, but on a slight incline. At the place of collision, and in all directions for many miles, there existed a heavy fog.

The jury found that both defendants Shaw and Knipfer were negligent: (1) In respect to keeping a sufficient lookout; (2) in respect to control of their respective cars; (3) in respect to driving to the left of the center of the highway; and (4) that the collision was a natural result of such negligence. The jury acquitted the plaintiff of any negligence, and further found that, in riding in defendant Knipfer's automobile under the existing conditions, she did not assume the risk of injury. The jury assessed the plaintiff's damages at the sum of $20,000. The usual motions after verdict were made, all of which were denied, with the exception of that relating to damages. On the undisputed evidence the court reduced the damages for medical and hospital expenses from $3,500 to $1,001. Other facts will be stated in the opinion. From a judgment for $17,501, together with interest and costs, entered on the 19th day of February, 1932, both defendants appealed.Shannon & Higgins, of Kenosha, for appellant.

Rouiller & Dougherty, of Milwaukee (Thomas A. Byrne, of Milwaukee, of counsel), for impleaded defendant.

Edward J. Ruetz and Urban J. Zievers, both of Kenosha, for respondent.

NELSON, J.

Numerous errors are assigned by defendants, but in the view we take of this controversy only two require consideration. A third assignment of error, however, will be discussed, to the end that trial courts may clearly appreciate the importance of having the reporter available during the deliberations of the jury so that a request by the jury for the reading of testimony may be complied with.

The two contentions to be considered are as follows:

I. Defendant Knipfer contends that under the undisputed evidence it should be held as a matter of law that the plaintiff assumed the risk of injury in riding with him through the dense fog which prevailed at the time of the accident, and that the court erred in denying his motion for judgment notwithstanding the verdict.

II. Defendant Shaw contends that under the undisputed evidence it should be held that the negligence of defendant Knipfer should be imputed to the plaintiff, and that the court erred in denying his motions to direct a verdict, and for judgment notwithstanding the verdict.

[1] I. On January 4, 1931, at about six o'clock in the evening, defendant Knipfer and the plaintiff, his wife, left Beloit for Kenosha as their destination. The distance from Beloit to Delavan is about 22 miles; from Delavan to Lake Geneva about 12 miles; and from Lake Geneva to the place of collision about 23 miles. There was no fog when they left Beloit. However, as they proceeded on their way they encountered fog. When they reached Lake Geneva the fog was so bad that the advisability of proceeding further was discussed. It was decided to go on. After leaving Lake Geneva the fog grew worse. The plaintiff testified that the fog was “terrible.” Another witness described the condition as “terribly foggy.” All of the witnesses who were present at the time of the accident or shortly thereafter agreed that the fog was very bad. The fog was so dense that neither Knipfer nor Shaw used his headlights. Both cars were driven with only the cowl lights turned on, for the reason that neither driver could see ahead at all when the headlights were on. The fog was so dense as to reflect practically all of the light from the headlights. There was testimony which would have supported a finding that defendant Knipfer at the time of the accident was driving without any lights at all. However, the jury found otherwise, and there is evidence to support that finding. That Shaw's cowl lights were turned on at the time of the accident was not disputed. The plaintiff was riding in the front seat with her husband. She was fully aware of the foggy condition, commented upon it, and clearly must have known of the dangers and hazards incident to traveling under such conditions. At times the fog was so bad that the lights of an approaching car could be seen for a distance of only thirty feet; yet through this fog she and her husband continued to travel without protest on her part and without coercion by her husband. The windows on both the husband's side and her side were lowered so as to permit him to watch the black line and her to watch the edge of the concrete. Both cars were being driven at conservative and careful rates of speed. The first thing that Shaw observed was Knipfer's face when about fifteen feet away. Knipfer did not see the lights on Shaw's car until that car was only five or six feet away. The plaintiff did not see the Shaw car until it was right upon them.

May it be said, with reason and common sense, that a person may ride in a car for many miles under such conditions without fully assuming the risk of injury incident to such a trip? We think not. The plaintiff knew that the fog was so bad that it was possible to see only a few feet ahead. She deemed it necessary to watch the right edge of the concrete in order to assist her husband in keeping the car on his side of the road and prevent its going into the ditch. She knew how difficult it was for her to see objects for any distance ahead and, consequently, knew how difficult it was for her husband to see. Though we have not heretofore had a case before us in which the facts were substantially similar, we feel impelled to hold, under the well-established rules applicable to assumption of risk by an occupant of an automobile, that the plaintiff assumed the risk and, in justice, should not be permitted to recover damages from her husband. Krueger v. Krueger, 197 Wis. 588, 222 N. W. 784;Sommerfield v. Flury, 198 Wis. 163, 223 N. W. 408;Page v. Page, 199 Wis. 641, 227 N. W. 233;Brockhaus v. Neuman, 201 Wis. 57, 228 N. W. 477. In all of those cases three elements were present which prevented recovery by a guest: (1) A hazard or danger inconsistent with the safety of the guest; (2) knowledge and appreciation of the hazard by the guest; and (3) acquiescence or a willingness to proceed in the face of the danger. All of these elements were obviously present in this action.

Driving in the nighttime through a fog which is so dense as to render the lights of a car practically useless, is quite the same as driving a car in the dark without lights. In such a situation it has been held that a guest is quite as negligent as the driver of the car. Rebillard v. Minneapolis, St. P. & S. S. M. Ry. Co. (C. C. A.) 216 F. 503, L. R. A. 1915B, 953. Under the law of this state relating to the assumption of risk by an automobile guest, we entertain no doubt that the plaintiff assumed the risk of such obvious dangers and hazards as were incident to proceeding through the dense fog. The motion of the defendant Knipfer for judgment notwithstanding the verdict should have been granted.

[2][3] II. The jury found that Knipfer was negligent in respect of keeping a...