Olson v. Williams

• Decision Date: 03 May 1955
• Parties: Lucille E. OLSON, as parent and guardian of Duane L. Olson, a minor, Appellant, v. Jerry L. WILLIAMS et al., Respondents.
• Court: Wisconsin Supreme Court

Page 10

70 N.W.2d 10

270 Wis. 57

Lucille E. OLSON, as parent and guardian of Duane L. Olson, a minor, Appellant, v. Jerry L. WILLIAMS et al., Respondents.

Supreme Court of Wisconsin.

May 3, 1955.

Thronson, Roethe & Agnew, Roscoe Grimm, Janesville, for appellant.

Roberts, Roe, Boardman, Suhr & Bjork, Madison, for respondents.

STEINLE, Justice.

Appellant contends that (1) The evidence does not support a finding of assumption of risk on the part of Duane L. Olson; (2) that plaintiff is entitled to judgment notwithstanding the answer to the question of the special verdict relating to assumption of risk; or in the alternative (3) that a new trial be granted in the interest of justice.

Pertinent to consideration of such contention is the observation of Mr. Justice Gehl in Olson v. Milwaukee Automobile Ins. Co., 1954, 266 Wis. 106, 109, 62 N.W.2d 549, 551, 63 N.W.2d 740, that:

'It is the well recognized rule that when a jury's findings are attacked, particularly when they have had the trial court's approval, our inquiry is limited to the issue whether there is any credible evidence that, under any reasonable view, supports such findings. With the rule in mind we consider that it is necessary to recite only the testimony which supports the jury's findings. Some of it is in dispute, but as to the disputed testimony we must recognize that it was for the jury to determine where the truth lies.'

The evidence upon which respondents rely in their position that the jury was warranted in finding that Olson acquiesced in the negligent management and control of the car by Williams is as follows: The accident occurred at about one o'clock on Sunday morning, November 23, 1952, on Highway 26 at a point about one-half mile north of Fort Atkinson. The highway is of black-top surface construction with graveled shoulders, level, runs north and south, and curves slightly to the east just south of the place where the car driven by Williams left the highway and struck a tree on the west side of the highway. No other car was involved. It had sprinkled a short while before, but at the time of the accident it was neither raining nor snowing. The roadway, however, was damp.

At the time of the accident Duane L. Olson was riding in the right front seat next to the driver, Jerry L. Williams. Wixson and Dick Williams, a younger brother of Jerry L. Williams, rode in the rear seat. These young men had been traveling together in the car since about 7:00 p. m. Saturday. They had ridden from Janesville to Edgerton, back to Janesville, back to Edgerton, back to Janesville, on to Beloit, and then to the vicinity of Fort Atkinson at which place they visited several taverns. Olson drank beer at one of the taverns while Jerry L. Williams and Wixson drank beer at each of them. The last place visited was Shore Crest Tavern, about two miles north of the scene of the accident. On leaving this place a five to ten minute argument ensued between Wixson, Olson and Williams as to whether Wixson or Williams was to drive. They had wrangled, too, as to where they were to sit in the car. Wixson thought Williams had too much to drink. Williams nevertheless took the wheel of the car. The speed at which he drove for the two-mile stretch to the place of the accident was about 45 to 50 miles per hour. The transmission was 'howling pretty bad.' Williams began immediately to weave the car from the right lane to the left and continued doing so for the entire distance traveled until striking the tree. Wixson protested to the weaving; Olson did not. Wixson told Williams to 'take it easy and quit messing around.' Williams persisted in weaving the car back and forth and Wixson protested again. There is evidence that as the car left the road before striking the tree, Olson hollered 'we are off the road.' Olson claims that he slept until the crash, but 'recalled riding down the road awhile with Jerry driving' after leaving the last tavern. Olson was rendered unconscious by the accident. Although Wixson denied touching the steering wheel just before the car left the road, testimony was adduced by Williams that Wixson had done so.

For application of the defense of assumption of risk three elements must be presented: (1) A hazard or danger inconsistent with the safety of the plaintiff; (2) knowledge and appreciation of the danger by the plaintiff; and (3) acquiescence or a willingness to proceed in the face of the danger. Groshek v. Groshek, 1953, 263 Wis. 515, 516, 57 N.W.2d 704.

Appellant maintains that Duane L. Olson was asleep; that the weaving had been corrected and a new danger of which Olson was not aware had been created when Wixson grabbed the wheel; that there was no time or opportunity for Olson to have protested the new sudden danger created by Wixson's interference with Williams' driving even though he had been awake.

The jury found that Williams was negligent as to management and control and that such negligence was a substantial factor in producing the injuries to Olson. Obviously, this causal negligence pertained to the weaving of the car by Williams. The jury found that Olson was not guilty of negligence, but had acquiesced in the negligence of Williams. In the Wixson case the jury found that Williams was negligent and that Wixson was contributorily negligent. It determined that Wixson had protested against the negligence of Williams. It is plain that in the Wixson case the negligence found as to Williams pertained to the weaving of the car. It was the same negligence against which Olson had failed to protest. From the evidence the jury was warranted in believing that Williams had commenced his weaving of the car before Olson started to sleep. There is also evidence which challenges Olson's ability to have gone to sleep before the accident. These considerations were for the jury in its determination of the acquiescence question.

A guest does not assume the risk of a host driver's sudden or momentary failure to exercise due care. Wibbeler v. Reed, 1953, 265 Wis. 141, 60 N.W.2d 700. However, if the negligent act of the host driver which causes injury is a continuance or repetition of similar negligence on his part, for which there had been occasion or opportunity to render protest, the guest passenger, in failing to protest assumes the risk. Webster v. Krembs, 1939, 230 Wis. 252, 258, 282 N.W. 564.

Appellant's counsel argues that the jury's affirmative answer to the acquiescence question is not supported by the evidence. Similar argument was made below in motions after verdict. The learned trial court in disposing of this contention, stated:

'The plaintiff's contention is to the effect that he was asleep when the accident happened, that it happened momentarily and that he had no opportunity to give any warning or to make any protest. Therefore, it is argued that he could not have acquiesced in the manner in which the car was being driven.

'There was evidence to show that before the plaintiff, Duane L. Olson, entered the car he had engaged in a violent argument with the defendant Jerry L. Williams. The accident happened but a short distance down the road from where the trip began, at the Shore Crest tavern. The car had a differential which became noisy after the car attained a certain speed. The differential was producing this noise just before the accident. Just before the accident the plaintiff, Duane L. Olson, said to the driver, Jerry L. Williams, the defendant, 'You are off the road.'

'If the plaintiff was entitled to claim his somnolence as an excuse for his failure to protest there was surely a jury question as to whether or not he was in fact asleep. The jury could well have concluded that the plaintiff could not have fallen asleep so quickly in a noisy car immediately after his angry wrangle with the defendant; and that his warning to the defendant after he had left the road showed that, if the plaintiff was asleep at all, he could not have been far removed from consciousness.

'Neither can it be said that it is a verity in the case that the accident resulted from a momentary inattention or lack of control of the driver, to which no protest could have been made. It has been pointed out that in the same verdict the jury found that another occupant of the car [Wixson] did have time to make an efficient protest. Thus, the jury must have accepted as credible the evidence from which it may be inferred that the accident resulted not from a momentary lack of control but from a somewhat continuous course of conduct with respect to the management and control of the car, concerning which there would have been ample opportunity to protest. The evidence shows...