Monsos v. Euler

• Decision Date: 09 October 1934
• Citation: 256 N.W. 630,216 Wis. 133
• Parties: MONSOS v. EULER ET AL.
• Court: Wisconsin Supreme Court

216 Wis. 133

256 N.W. 630

MONSOS

v.EULER ET AL.

Supreme Court of Wisconsin.

Oct. 9, 1934.

Appeal from a judgment of the Circuit Court for Dodge County; C. M. Davison, Circuit Judge.Affirmed.

The action was brought on June 7, 1933, by Elizabeth Monsos, to recover for personal injuries sustained by plaintiff, a guest, against the defendantWilliam H. Euler, her host, as a result of the overturning of a car in which the parties were riding and which defendant was driving.The Bankers' Indemnity Insurance Company, the insurer of the defendant Euler, was made a party.

The case was tried to the court and a jury, and a special verdict returned.Defendant was found negligent with respect to the manner in which he applied his brakes.It was further found that plaintiff did not assume the risk of such negligence, and that she was not contributorily negligent.The jury assessed plaintiff's damages as follows: Loss of time, $570; pain and suffering, $500; future disability, $4,500.Defendant appeals from a judgment entered November 18, 1933, in favor of plaintiff upon the special verdict.Plaintiff filed a motion to review upon the grounds that the damages awarded for pain and suffering as well as those for loss of time are inadequate.

Such facts as are necessary to an understanding of the questions raised will be stated in the opinion.Harry V. Meissner, of Milwaukee, for appellants.

Corrigan, Backus, Ruppa, Bortin & Backus, of Milwaukee, for respondent.

WICKHEM, Justice.

On March 18, 1932, pursuant to previous arrangements, plaintiff came by rail from her home at Black River Falls to the city of Baraboo, where she met the defendant.Plaintiff and defendant had planned to drive to Milwaukee, and then to visit plaintiff's relatives in Port Washington.When they left Baraboo about 4 o'clock in the afternoon, it was raining, sleeting, and freezing.The windshield was obstructed by ice, and the windshield wiper was ineffective to remove this.In order to improve the conditions of visibility through the windshield, defendant lighted two candles and placed them in proximity to the windshield to melt the ice.As a result of the use of these candles, a portion of the windshield several inches wide and five or six inches high was cleared.The defendant maintained a speed of about 30 miles an hour through the entire journey.About 6 o'clock in the evening, at a point some 60 miles from Baraboo, the car came over a slight rise in the highway.The defendant then saw ahead of him a truck which was in fact about 410 feet away, but which defendant estimated to be from 200 to 250 feet away.Although there is a conflict on the point, there is evidence that defendant immediately slammed on his brakes.The car then skidded into the ditch, turned over, and caused plaintiff's injuries.

Defendants' first contention is that the accident was caused, in part at least, by poor visibility and the slippery condition of the highway, and that these conditions were known to plaintiff and the risk involved assumed by her.Particular reliance is had upon Knipfer v. Shaw, 210 Wis. 617, 246 N. W. 328, 330, 247 N. W. 320, where this court said: “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.”

[1] The Knipfer Case is distinguishable from the case at bar.There the facts compelled the conclusion that a causal connection existed between the weather conditions and the accident.In the Knipfer Case the parties were driving in a fog so dense as virtually to destroy all visibility, and to make it nearly impossible to maintain a proper position on the highway or observe the approach of other vehicles.Here the general conditions of visibility were not bad.The only difficulty was that the view through the windshield was obstructed by sleet, and this condition was sufficiently remedied by the use of candles so that both parties observed the truck when it was over 400 feet ahead.After observing the truck, there was ample time and opportunity, even assuming a somewhat slippery pavement, to bring the car to a stop and to avoid the accident.Under these conditions, it cannot be held that the weather conditions were a cause of the accident, and, if they were not, plaintiff's assumption of risk with respect to them would be immaterial.These conclusions also render inapplicable the doctrine of Young v. Nunn, Bush & Weldon Shoe Co., 212 Wis. 403, 249 N. W. 278, 279, where it was held that one of the items of negligence found by the jury to have been a cause of the accident, and as to which the plaintiff assumed the risk, could not be isolated or separated from another item also found by the jury to have been a cause, and with respect to which plaintiff did not assume the risk.

[2][3] The evidence sustains the conclusion that the cause of this accident was the sudden application of the brakes by defendant, and his consequent loss of control over the car.That this was not the proper procedure under such conditions as prevailed is conceded; that every experienced driver knows that a sudden application of the brakes under such conditions will result in skidding and loss of control is not denied.It is evident from the record that defendant was an experienced driver and knew all this.It is contended that under all of the facts the default of defendant was one of judgment or skill, as to which plaintiff assumed the risk.We are of the opinion that the jury was entitled to conclude that defendant did not conscientiously exercise the skill and judgment possessed by him, or utilize the experience that he concededly had.It is further contendedthat skill involves not only judgment, but the co-ordination necessary...