Krause v. Hall

• Decision Date: 10 January 1928
• Citation: 195 Wis. 565,217 N.W. 290
• Parties: KRAUSE v. HALL.
• Court: Wisconsin Supreme Court

195 Wis. 565

217 N.W. 290

KRAUSE

v.HALL.

Supreme Court of Wisconsin.

Jan. 10, 1928.

Appeal from a judgment of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge. Affirmed.

Action by plaintiff, Frances Krause, against the defendant, Arthur S. Hall, to recover damages for personal injuries sustained by her while a guest in his automobile, by reason of his negligence. From a judgment in favor of the plaintiff, the defendant appeals.

Plaintiff had known defendant for about a year prior to the accident. During such time she had habitually accepted his invitations to accompany him to dances at roadhouses in the vicinity of Oshkosh. On all such occasions they went in defendant's automobile. Generally, the defendant had liquor with him which they drank. Occasionally the defendant showed the effects of liquor, but he never became drunk so that he did not know what he was doing. On those trips it was not uncommon for the defendant to put his arm around plaintiff, caress her, and kiss her, driving the automobile with one hand. She protested against his driving in this manner if he drove fast. If he drove slow she did not have much to say about it.

On December 2, 1924, they went to a dance at the Rainbow Gardens, near Appleton. Upon arriving there, they danced and had something to eat. They also had three or four drinks of gin, furnished by the defendant, during the time they were there, from 10 o'clock p. m. to 2 o'clock a. m. On the way back he drove with one hand, putting one arm around her, hugging and kissing her on the way. He drove very fast, from 45 to 55 miles per hour. She protested against the speed at which he was driving, and protested against his driving at such a rate of speed with one arm around her. He disregarded her protests.

About 2 miles from the city of Oshkosh the tracks of the Chicago & Northwestern Railroad Company cross state highway 15, upon which plaintiff and defendant were driving, and at this point the car in which they were driving crashed into a freight train crossing the highway, causing the plaintiff serious injuries.

The jury returned a special verdict, in which they found the defendant, Hall, negligent just before and while approaching the Northwestern Railroad crossing with respect to the rate of speed at which he was driving, and in his failure to keep a proper lookout, which negligence constituted a proximate cause of the collision. They found no want of ordinary care on the part of the plaintiff. The special verdict also contained this question:

“Question No. 4: Ought a person of ordinary intelligence and prudence, similarly situated, experienced, and engaged as was the plaintiff on the return drive from Appleton, on December 3, 1924, and with her knowledge of defendant's condition and previous conduct, reasonably to have anticipated that the defendant would fail to exercise ordinary care in the operation of his car with reference to maintaining a proper speed, driving the same recklessly or keeping a proper lookout, and to have known and comprehended the dangers reasonably to be apprehended therefrom?”

The jury answered this question, “No.”Bouck, Hilton, Kluwin & Dempsey, of Oshkosh, Lines, Spooner & Quarles, and Malcolm K. Whyte, all of Milwaukee, for appellant.

Weed & Hollister, of Oshkosh, for respondent.

OWEN, J.

It is apparent that the collision resulting in plaintiff's injuries occurred because of a failure to keep a proper lookout while driving at an excessive rate of speed. The defendant testified that he discovered the freight train across the highway when he was 55 or 60 feet distant, but that he was unable to stop his automobile in time to avoid the collision. Appellant insists that the judgment should be reversed because the plaintiff assumed the risk which resulted in the injury. Her testimony shows that on the trips she made with the defendant it was customary for him to indulge in intoxicating liquor to a certain extent, and that it was not unusual for him to drive the car with one arm around her and caress her on the way. It does not appear that his indulgence in liquor ever so affected him as to disable him from safely driving the car, nor does it appear that he ever drove at such an excessive rate of speed, or that his manner of driving ever threatened an accident. He never drove as fast before as he drove on the trip from Appleton to Oshkosh on the night in question. There is no room in this instance to conclude that the accident was in any degree the result of the liquor he drank that night. Neither is there room to say that the accident resulted from his driving with one hand. Although driving at a high rate of speed, there is no suggestion in the evidence that the car was not properly guided on the trip. There is room for the contention that his caressing of the plaintiff interfered with the efficiency of the lookout which he was enabled to keep, and that she had reason to expect such inefficiency by reason of her past experience, and that this was a risk which she assumed. However, the inefficiency of the lookout alone was not responsible for the accident. According to his own testimony, he discovered the train when he was 55 or 60 feet from the crossing, and, had he been going at an ordinary rate of speed, he well might have stopped the car before the collision. The jury might well...