Markovich v. Schlafke

• Decision Date: 07 March 1939
• Citation: 230 Wis. 639,284 N.W. 516
• Parties: MARKOVICH v. SCHLAFKE et al.
• Court: Wisconsin Supreme Court

230 Wis. 639

284 N.W. 516

MARKOVICH

v.SCHLAFKE et al.

Supreme Court of Wisconsin.

March 7, 1939.

Appeal from a judgment of the County Court of Shawano County; C. B. Dillett, Judge.

Reversed.

Action commenced by the plaintiff, Branko Markovich, in December, 1937, against the defendants, Ed. Schlafke and Hartford Accident & Indemnity Company, to recover damages for personal injuries sustained by him as a result of an automobile accident which occurred on April 8, 1936. At the time of the accident, the plaintiff was a guest in Schlafke's automobile. While proceeding along highway No. 55, Schlafke went to sleep and as a result his automobile left the highway and ran into a ditch. Trial was had to the court and a jury. The jury found that Schlafke was negligent in respect to (1) maintaining a proper lookout, (2) keeping his automobile under control, and (3) turning off the traveled portion of the highway into the ditch; that his negligence in those respects caused the accident and the plaintiff's injuries; that the plaintiff exercised ordinary care for his own safety; that the plaintiff did not assume the risk of Schlafke's going to sleep, and thereupon assessed the damages sustained by the plaintiff. The plaintiff moved for judgment in his favor upon the verdict. The defendants moved for judgment in their favor notwithstanding the verdict, to change the answer to the fifth question which found that the plaintiff did not assume the risk, and for judgment in their favor on the verdict as so changed, and in the alternative, for a new trial. The trial court granted the plaintiff's motion and denied the motions of the defendants. Judgment was ordered and accordingly rendered in favor of the plaintiff and against the defendants. From that judgment, entered August 4, 1938, the defendants appealed.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for appellants.

Eberlein & McCarthy, of Shawano, for respondent.

NELSON, Justice.

The only errors assigned on this appeal are: (1) that the trial court erred in denying defendants' motion for judgment in their favor notwithstanding the verdict and (2) that the trial court erred in refusing to grant their motion to change the answer to the fifth question of the special verdict, which related to the assumption of risk, from “No” to “Yes,” and for judgment in their favor upon the verdict as so changed. Both assignments of error involve the same contention. That contention is that the accident was caused by the defendant's going to sleep while operating his automobile and that, under the circumstances, the plaintiff must be held, as a matter of law, to have assumed that risk. It is not disputed that the sole cause of the accident was Schlafke's going to sleep while operating his car.

The material facts are not in dispute. The plaintiff and the defendant Schlafke both resided at Wabeno, in this state. The plaintiff was a blacksmith. Schlafke was engaged in the bakery business. April 7th was spring election day. At about 8 o'clock in the evening of that day the plaintiff went to the tavern of one Ben Slowe, where shortly thereafter he began to play cards. There was quite a large crowd in the tavern. Quite a few drinks were indulged in by those present. The plaintiff first observed the defendant Schlafke in the tavern at about 12 o'clock. Schlafke had a few drinks but none of the witnesses who testified considered that he was intoxicated. Shortly before 4 o'clock in the morning, according to the plaintiff's testimony, Schlafke proposed that the plaintiff accompany him in his automobile to Antigo where he had some business requiring his attention. Schlafke testified that the proposed trip was undertaken “for some good times.” The plaintiff consented to accompany the defendant and they walked a short distance to the defendant's garage where his automobile was kept. From Wabeno they proceeded to another tavern located at Windfall. That tavern was closed. They then drove on to another tavern which was also closed. From there they proceeded to a third tavern known as the Porcupine Inn. The bartender there was a friend of the plaintiff, and the plaintiff and Schlafke were each served two drinks. They then proceeded on county trunk E toward Lily. The plaintiff testified as follows:

“Before we left the Windfall Mr. Schlafke pretty near went to sleep from about eight miles from town. I was watching the car and when we went to the place near there named Porcupine Inn we turned in there and we had two drinks. Mr. Schlafke cashed a check there. I suppose that's why he wanted to stop. He said ‘Let's go now.’ When we come to the intersection on 55 and E, I see him, he was pretty sleepy. I said ‘Let me drive the car?’ He wouldn't let me. ***

“Q. How far from Lily was it that you noticed he was sleeping and asked him to drive? A. I don't know. One and a half or two miles.

“Q. Is that the first time you noticed he was sleepy? A. The second time.

“Q. How many times did you notice? A. He went to sleep a little, a couple-three times. ***

“Q. Before the accident happened, did you notice if he was sleepy? A. I told him, and he said, ‘Never mind,’ and asked me if I was scared.

“Q. Where was that? A. 55 intersection with E.

“Q. That was when you noticed he was sleepy? A. That's the time I stopped him to drive. ***”

Cross-examination.

“Q. As I understand it your friend Mr. Schlafke was sleepy between Isabels and the Windfall? A. Absolutely. ***

“Q. I suppose that once in a while Schlafke was still sleepy? A. Just once.

“Q. You got to the junction of E and 55? A. I told him to stop there.

“Q. That's right in Lily? A. Yes, sir.

“Q. What did you say? A. I told him to let me drive the car. He said ‘Nothing doing. You scared.’ I said, ‘I am sleeping all afternoon, so I can drive it.'

“Q. You knew he had been up all night? A. Sleep must have got any man if he didn't sleep all night. That's why I didn't trust him.

“Q. You drive a car? A. Yes. ***”

Re-direct examination.

“Q. When you stopped Schlafke and offered to drive the car and he insisted on driving himself, did he then convince you he was perfectly alright? A. Yes. He said, ‘I know what I am doing.'

“Q. Were you then satisfied that Schlafke was perfectly capable of driving a car? A. Yes.”

It thus clearly appears from the plaintiff's own testimony that he noticed that Schlafke went to sleep a little two or three times on the trip; that because he observed Schlafke was sleepy he made him stop at the intersection of county trunk E with highway No. 55 and wanted to drive the car himself; but after being assured by the defendant that the latter knew what he was doing he rode on with Schlafke still at the wheel, a distance of about a half mile when Schlafke again went to sleep and lost control of his car.

These facts testified to by the plaintiff himself make out about as clear a case of assumption of risk by a guest as may well be found. In Knipfer v. Shaw, 210 Wis. 617, 246 N.W. 328, 330, 247 N.W. 320, we reviewed a number of our prior cases in each of which it had been held that the guest had assumed the risk. We said: “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...