Paul v. Hodd

• Decision Date: 06 December 1955
• Citation: 271 Wis. 278,73 N.W.2d 412
• Parties: Forrest PAUL et al., Respondents, v. Roy HODD et al., Appellants.
• Court: Wisconsin Supreme Court

Page 412

73 N.W.2d 412

271 Wis. 278

Forrest PAUL et al., Respondents, v. Roy HODD et al., Appellants.

Supreme Court of Wisconsin.

Dec. 6, 1955.

Wm. A. Cameron & Howard W. Cameron, Rice Lake, for appellants.

Douglas, Omernik & Bitney, Spooner, for respondents.

FAIRCHILD, Chief Justice.

The jury found Gerald Hodd causally negligent as to the management and control of his automobile, and in failing to exercise the skill and judgment in its operation which he possessed. There is credible evidence which, when reasonably viewed, fairly admits an inference supporting the jury's findings. That being true, neither the trial court nor this court has authority to change the jury's findings. Austin v. Zaspel, 270 Wis. 368, 71 N.W.2d 417.

Appellants urge that the trial court erred in refusing to include in the verdict the appellants' proposed question on assumption of risk by the guest Gary Paul, deceased. They argue 'that the evidence will show that the accident happened only by reason of the defendant's lack of experience and lack of driving skill.' In determining whether Gerald Hodd failed to exercise the skill and judgment he possessed in the operation of his automobile just prior to and at the time of the accident, the jury had evidence before it to show that he had been driving his father's car since December, 1953; that he had driven his own car from the time he acquired it in June, in the neighborhood of 3,200 miles; and that both his and his father's cars had manual shifts. In support of their contention as to this point they insist that there is no evidence 'as to any negligent speed, lookout or inattention.' It plainly appears from the record that the trouble developed from appellant driver's increasing his speed to pass a preceding vehicle on a slippery pavement. It appears in the testimony of the witness Thara that a very brief interval of time elapsed between the instant the driver, Gerald Hodd, after passing Thara's vehicle, sought to regain his lane of travel and the tipping over of his automobile. He was going upwards of 40 miles an hour, on a slippery pavement, under conditions which afforded only poor visibility.

As to the acceptance by the guest of the driver with such skill as he possessed, appellants urge that Hodd was an inexperienced driver. The evidence submitted and accepted by the jury in arriving at its verdict, and confirmed by the learned trial judge on motion after verdict, bearing upon the experience of Gerald Hodd as a driver, is that he was 18 years old; that he had been driving since December, 1953; that he drove to and from the county shop--a distance of at least nine miles--to get to his daily work during part of the time of the summer of 1954; that part of the time he drove an additional nine miles to the deer farm; and that part of the time he drove to and from Exeland to work, a round trip of 60 miles. In addition to driving to and from work, he had driven evenings during the week, and he had driven the car to school. The jury answered the question with relation to his exercising the skill and judgment he possessed against the appellant driver, and that answer must be sustained.

Appellants' next contention is that this was an unavoidable accident due to skidding and not due to the driver's negligence, insisting that the car skidded on the highly slippery blacktop and was out of control throughout the entire distance. However, on the testimony of disinterested witnesses and the physical facts, the jury had before them evidence warranting the findings made by them. It is in evidence that Gerald Hodd, after passing the car ahead of him, drove for some distance along the south lane of the blacktop in a slightly diagonal direction to the southeast. He left the blacktop, without swerving, at a point 48 to 60 feet west of a driveway crossing the ditch and connecting with the east-west highway at its south edge. He traveled on the soft shoulder in practically a straight line in the same southeasterly direction in which he had been going on the highway, for a distance of about 35 feet and into the ditch. The skidding, if any, occurred at the end of this 35-foot distance. The car, at a point very near the raised edge of the driveway, swung around, tipped over, and landed on the driveway with its four wheels in the air and its front facing south.

The sheriff, who reached the scene of the accident shortly after it occurred, gave testimony to the effect that: There were no skid marks on the blacktop west of where the car left it. As the tracks proceeded from the south side of the blacktop they went in a practically straight southeasterly direction...