Peterson v. Magnus
| Decision Date | 03 April 1956 |
| Citation | 76 N.W.2d 289,272 Wis. 461 |
| Parties | Andrew PETERSON, Appellant, v. Ed MAGNUS and Mutual Service Casualty Insurance Company, a corporation, Respondents. |
| Court | Wisconsin Supreme Court |
Douglas, Omernik & Bitney, Spooner, for appellant.
Louis G. Nagler, St. Croix Falls, Toebaas, Hart, Kraege & Jackman, Madiscon, for respondents.
Among other things plaintiff urges that the court should have changed the answer to the question which inquired whether plaintiff had assumed the risk of the negligence of defendant Magnus as to speed from 'yes' to 'no.'
One cannot be said to be driving at a reasonable rate of speed who in snowy weather and on a slippery road expects to cover a distance of 60 miles in about an hour of driving time and does, as Magnus did on the morning in question, drive a distance of at least 20 miles to the scene of the accident in about a quarter of an hour. There is abundant proof of speed.
We have no difficulty in reaching the conclusion that the speed at which Magnus drove was, under the road and weather conditions then existing, a cause, if not the sole cause, of the accident.
The plaintiff knew on the morning in question that Magnus was driving too fast for safety; yet he made no complaint. See Bourestom v. Bourestom, 1939, 231 Wis. 666, 285 N.W. 426, where we held that under similar circumstances a guest must be held as a matter of law to have assumed the risk.
Olson v. Williams, 1955, 270 Wis. 57, 70 N.W.2d 10, 14.
It is also urged that we should hold as a matter of law that plaintiff did not assume the risk incident to defendant's negligent management and control of the car, that the rule that a guest does not assume the risk of a host-driver's sudden or momentary failure to exercise due care applies. If we were to agree with that contention and could, upon the facts here presented, completely separate the two findings and treat them independently of each other, we might under the authority of State ex rel. Litzen v. Dillett, 1943, 242 Wis. 107, 7 N.W. 599, 9 N.W.2d 80, be required to hold that the trial court erred in permitting...
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...with the speed of the car that the lack of management and control cannot be separated therefrom. This was so held in Peterson v. Magnus, 1956, 272 Wis. 461, 76 N.W.2d 289. The same reasoning was applied to momentary lookout in Tomchek v. Mutual Automobile Ins. Co., 1959, 6 Wis.2d 577, 95 N.......
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...guest does not assume. Negligence as to management and control, likewise, is usually of a momentary character, as in Peterson v. Magnus, 1956, 272 Wis. 461, 76 N.W.2d 289. In that case this court held that where there is such excessive speed as might well be the sole cause of the accident, ......