Pecor v. Home Indem. Co. of N.Y.

• Decision Date: 09 April 1940
• Citation: 234 Wis. 407,291 N.W. 313
• Parties: PECOR et al. v. HOME INDEMNITY CO. OF NEW YORK et al.
• Court: Wisconsin Supreme Court

234 Wis. 407

291 N.W. 313

PECOR et al.

v.HOME INDEMNITY CO. OF NEW YORK et al.

Supreme Court of Wisconsin.

April 9, 1940.

Appeal from a judgment of the Circuit Court for Oneida County; George J. Leicht, Judge.

Reversed.

Action begun January 4, 1939, on behalf of Wilbur Pecor, an infant, by Frank Pecor as guardian ad litem, and Frank Pecor in his own behalf, against The Home Indemnity Company of New York. Thereafter, George Jackson was impleaded as a party defendant. The action arose out of an automobile accident on the night of December 10, 1937, on Highway N in Vilas County. The impleaded defendant, George Jackson, was operating the automobile in which Wilbur Pecor was a guest when the accident occurred.

Case was tried to the court and jury. The jury found Jackson causally negligent as to (a) speed, (b) lookout and contol, and (c) driving on the wrong side of the road; and further found Wilbur Pecor not negligent and that he did not assume the risk of injury. Damages were assessed for personal injuries sustained by Wilbur Pecor in the sum of $5,000, and for his loss of earnings after the age of 21, $2,000. Further damages were assessed in favor of the father, Frank Pecor, for medical expense in the sum of $1,992.15, for other expenses in the sum of $155, and for the loss of services and earnings of his son Wilbur before arriving at the age of 21, at $200. The usual motions were made after verdict. Thereafter, on August 23, 1939, judgment was entered in favor of Wilbur Pecor against The Home Indemnity Co. of New York for the sum of $7,000 and in favor of Frank Pecor against The Home Indemnity Co. in the sum of $2,347.15, with costs taxed in the sum of $176, amounting in all to $9,523.15.

After entry of judgment, Frank Pecor died and the action was revived by the appointment of Clyde Pecor as guardian ad litem for Wilbur Pecor, also as special administrator of the estate of Frank Pecor, deceased. From this judgment, The Home Indemnity Co. appeals. The material facts will be stated in the opinion in connection with the discussion of the assignment of errors.Burns, Mehigan & Schoen, of Milwaukee, and Bird, Smith, Okoneski & Puchner, of Wausau, for appellant.

O'Melia & Kaye, of Rhinelander, for respondents.

MARTIN, Justice.

Appellant contends (1) that Wilbur Pecor assumed the risk of injuries and that the court erred in not so finding as a matter of law; (2) that material errors on the trial and prejudicial, improper conduct of plaintiffs' counsel resulted in a perverse and excessive verdict; and (3) that the court erred in not granting a new trial.

Bearing upon Jackson's negligence in operating the automobile at the time in question and upon Wilbur Pecor's assumption of risk, it appears that on the evening of December 10, 1937, Wilbur Pecor, age 18, Malcolm Powell, age 15, and John Powell, age 17, rode with George Jackson, age 16, in George Jackson's father's car to Eagle River to witness a basketball game. Following the game, the attended a dance where the boys met two girls whose homes were at Boulder Junction. During the dance, Wilbur Pecor agreed to take the girls to their homes which were about 25 miles beyond where the boys lived. The party left Eagle River at about 12:30 A. M. in Jackson's car, Pecor having given Jackson a dollar to buy gas. John Powell drove the car from Eagle River to Boulder Junction at a speed of from 30 to 35 miles per hour. Jackson dozed or slept on the way. Malcolm Powell got out of the car at his home. It was snowing and there was ice and snow on the sides of the road. After leaving the girls at their homes, the boys (Wilbur Pecor, John Powell, and George Jackson) started on the return trip to their homes, Jackson driving the car, Powell seated next to him, and Pecor on the right-hand side in the front seat.

From Boulder Junction to the place where the accident occurred was between six to eight miles. There were a number of curves and hills in the highway. The testimony indicates that Jackson drove at a speed of from 45 to 50 miles per hour, and as he rounded the first curve, the car skidded. Pecor testified that he then warned Jackson that he was driving too fast (Powell and Jackson both testified that they did not hear Pecor's warning). Pecor gave no further warning to Jackson, and there is some testimony that Pecor dozed or slept until the car had about reached the scene of the accident. There was no ice in the center of the road. Between the snow banks on the sides, there was about twenty feet of open highway for travel. Visibility was good. The car was a 1937 Plymouth, equipped with good four-wheel brakes which applied evenly, good tires, and operated smoothly.

From the first curve to the scene of the accident was between five and six miles. Pecor testified that after his protest Jackson slowed down in passing some of the succeeding curves. From the time the car skidded on the first curve out of Boulder Junction to the scene of the accident, John Powell was sleeping. Beyond the place where the accident occurred, there is a sharp turn in the road, then a steep decline for a distance of about 800 feet, and at the foot of the hill there is a long curve. Jackson testified he did not see this curve at the bottom of the hill until he was about 300 feet away. He testified he then let up on the gas, and because of the speed at which he was driving, he cut to the inside of the curve in order to make it. In so doing, when the wheels hit the snow and ice on the inside of the curve, the car skidded. He then applied his brakes and the car skidded or slued for a distance of 70 to 150 feet over to the other side of the road and into a guard rail, which rail went through the right side of the car striking Pecor and breaking both of his legs.

Pecor testified that he did not call Jackson's attention to the curve at the bottom of the hill because he thought Jackson could see it. He further testified that he realized Jackson was going too fast down the hill, but did not make any further protest because he thought any statement he might then make would only excite Jackson.

Appellant makes no contention that the evidence does not sustain the jury's finding of negligence on the part of defendant Jackson. On the contrary, appellant contends that Jackson's negligence was so open and apparent that the trial court should have held as a matter of law that Pecor assumed the risk of injury. The jury found Jackson negligent as to speed, lookout and control, and in respect to operating the car on the inside of the curve where the roadway, because of ice and snow, was slippery. The main traveled part of the road was covered with black top. The testimony is to the effect that the snow fluries were light and dry and did not obstruct the visibility of the black top surface. Pecor had no reason to believe that Jackson would drive on the inside of the curve where there was an accumulation of snow and ice instead of keeping upon the main traveled portion of the highway, which according to all of the evidence, was free from any accumulation of snow or ice.

[1][2]We think it apparent that speed alone did not produce the accident. Driving to the inside of the curve upon a slippery surface and the sudden application of brakes would, as a matter of common knowledge, cause this car to skid in the manner disclosed by the testimony and cause the consequent loss of control by the driver. Any protest by Pecor after Jackson had started to cut the curve would have been of no avail.

“‘*** There can be no doubt of the rule that the guest must take the host, with his defects of skill and judgment and his known habits and eccentricities of driving, and in addition that the guest will be considered to acquiesce in any course of driving that has persisted long enough to give him an opportunity to protest and thus indicate dissent or disapproval of the manner of driving.”’ Groh v. W. O. Krahn, Inc., 223 Wis. 662, 667, 271 N.W. 374, 377.

In finding Jackson negligent as to lookout and control, the jury must have concluded that had Jackson maintained a proper lookout, he could have kept his car upon that part of the roadway which was clear of ice. This court has held that lookout may be a momentary matter as to which there can be no assumption of risk by the guest. Poneitowcki v. Harres, 200 Wis. 504, 228 N.W. 126;Maltby v. Thiel, 224 Wis. 648, 653, 272 N.W. 848.

Jackson's act in suddenly driving upon the icy portion of the highway and then applying the brakes when his car commenced to skid, was obviously such a momentary act that there was no time or opportunity for Pecor to protest or leave the car to avoid injuries. See Forbes v. Forbes, 226 Wis. 477, 480, 277 N.W. 112;Webster v. Krembs, 230 Wis. 252, 259, 282 N.W. 564.

In Rudolph v. Ketter et al., Wis., 289 N.W. 674, the guests recovered for injuries sustained because of the negligence of the host, who, while driving upon the left side of the road, suddenly turned to get upon his right side and went into the ditch causing their injuries.

[3] We are of the opinion that the evidence sustains the conclusion that the accident happened, not because of lack of skill, experience, or judgment on the part of the defendant Jackson, but by reason of his failure conscientiously to exercise such skill, judgment, and experience as he had. See Monsos v. Euler, 216 Wis. 133, 138, 256 N.W. 630.

“The plaintiff having once protested against the rate of speed at which the defendant Saecker was driving, the defendant having slowed down to a rate of speed of 35 miles an hour, which he maintained until his attempt to pass the Schmirler car-a matter of seconds, as will be shown later-and there being no time nor opportunity to protest against his attempt to pass the Schmirler car, it cannot be held as a matter of law that the plaintiff acquiesced in the reckless driving of the defendant.” Royer v. Saecker, 204 Wis. 265, 268, 234 N.W. 742, 743.

[4]What is said in the latter case is...