Koepke v. Miller

• Citation: 241 Wis. 501,6 N.W.2d 670
• Parties: KOEPKE v. MILLER et al.
• Decision Date: 09 February 1943
• Court: United States State Supreme Court of Wisconsin

241 Wis. 501

6 N.W.2d 670

KOEPKE

v.MILLER et al.

Supreme Court of Wisconsin.

Dec. 8, 1942.

Rehearing Denied Feb. 9, 1943.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

Action by Richard Koepke against John A. Miller and another, commenced June 24, 1940. From a judgment in favor of the plaintiff entered May 15, 1942, the defendants appeal.

The action is by a guest against his host for injuries received while riding in an automobile that ran into a moving railway train.

The evidence is undisputed or the jury might rightly infer therefrom that the collision occurred at about four A. M. on January 21, 1940. The weather was cold, the windshield and side windows frosted and the streets icy in spots. The three occupants of the car were in the driver's seat. Miller, the driver was at the left, Koepke in the middle and Robb, a cousin of Koepke, on the right. Koepke and Robb went out together early in the evening for a good time, made the round of several taverns, at nearly all of which they drank liberally of intoxicants. Sometime around two o'clock Robb left Koepke at a tavern for a while and when he returned Koepke was with Miller in the tavern where Robb had left Koepke. Miller had been drinking heavily but seemed to be carrying his load “perfectly” and to converse “well.” Robb was anxious to get Koepke to go home with him but after a parley the three got in Miller's car and left for another designated tavern. The windshield was coated with frost and after starting the engine the defroster was turned on and the engine kept running until a semi-circular space about four inches high was cleared at the bottom of the windshield on both sides, through which Miller and Robb could see ahead. The windshield in front of Koepke was not cleared at all and he could not see through it. Under these conditions the three started out. The collision occurred seven to twelve minutes later. Miller drove the car at twenty to twenty-five miles per hour. He made a right and a left turn at two street intersections, stopped at two arterials where there were no traffic lights and passed one arterial where there were lights that were showing in his favor, and otherwise managed the car properly until he neared a railroad track that crossed the street at some deviation from a right angle. An automobile stood on the right side of the street on which Miller was driving twenty to twenty-five feet from the track waiting for a moving freight train to clear the crossing. On nearing this automobile Miller turned out to pass it and increased his speed. Robb then realized that Miller had not seen the train and called out to him to stop, but the car was so close to the track that he was unable to do so before running into the side of the train. It does not appear whether the street was icy at this point although Robb stated that it possibly was. Robb saw the train when 100 to 200 feet from it and noticed a street light beyond the track flicking through between the box cars as they passed. He also saw the train's headlight towards his right through a side window when it crossed a street called Beloit Road that crosses the railroad track from southwest to northeast 200 feet from where the railway track crosses 60th Street on which Miller was driving south. Miller did not see the train until Robb called out. Robb also heard the train whistle for the Beloit Road and heard the noise of the wheels pounding over the rail joints and Miller did not hear it.

On the trial the court found Miller as matter of law causally negligent (a) “in respect to the lookout kept” by him, and (b) “in respect to his failure to stop his automobile in time to avoid the collision.” The jury found the hazards that Koepke knowingly assumed when he entered the automobile were added to by the negligence of Miller (a) as to lookout, and (b) that the negligent lookout of Miller did not persist long enough to give Koepke opportunity to protest. They also so found as to Miller's negligence in failing to stop, and found that Koepke was not negligent as to lookout or as to warning Miller of the presence of the train. The damages of Koepke for expenses in caring for his injuries to the time of trial were fixed by the court at $461 without objection and the damages due to his other injuries were assessed by the jury at $5,739. Judgment was entered in favor of Koepke for the aggregate of these amounts.

Schmitz. Wild & Gross and John H. Murphy, all of Milwaukee, for appellants.

Cornelius T. Young and George D. Young, both of Milwaukee, for respondent.

FOWLER, Justice.

The action is brought by a guest, Koepke, against his host, Miller and his insurer, to recover for injuries sustained by him in a collision of the automobile in which he was riding with a moving freight train at a railroad crossing, which injuries were alleged to have been caused by the negligence of Miller in driving the automobile.

The appellants contend in substance that the court erred (1) in not submitting to the jury the issue of Miller's negligence; (2) in not ruling that Koepke as matter of law assumed the risk of injury; (3) in not holding Koepke guilty of contributory negligence as matter of law; (4) in refusing to submit to the jury the form of special verdict requested by the defendants; (5) in submitting the issues by the form of verdict submitted; (6) in permitting a witness, Robb, to testify as to observations made in daytime two years after the collision as to how far he could see on the instant street ahead of an...