Royer v. Saecker

• Court: Wisconsin Supreme Court
• Writing for the Court: OWEN
• Citation: Royer v. Saecker, 204 Wis. 265, 234 N.W. 742 (Wis. 1931)
• Decision Date: 10 February 1931
• Parties: ROYER v. SAECKER ET AL.

204 Wis. 265

234 N.W. 742

ROYER

v.SAECKER ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1931.

Appeal from a judgment of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge. Affirmed on Saecker's appeal; reversed on Phillips's appeal.

Action by Lee Royer, plaintiff, against Wesley Saecker and L. C. Phillips, defendants, commenced on the 29th day of March, 1929, to recover damages sustained as the result of an automobile collision. From a judgment rendered in favor of the plaintiff against both defendants on the 21st day of January, 1930, the defendants L. C. Phillips and Wesley Saecker severally appeal.

See, also, 234 N. W. 745.Fisher, Cashin & Reinholdt, of Stevens Point, and Bradford & Bradford, of Appleton, for appellant Saecker.

Benton, Bosser & Tuttrup, of Appleton (Harold M. Wilkie, of Madison, of counsel), for appellant Phillips.

Winter & Winter, of Shawano, for respondent.

OWEN, J.

On February 24, 1929, the plaintiff, twenty-five years of age, left Menasha in an automobile driven by the defendant Wesley Saecker for a pleasure trip to Appleton. Two other young men, Robert O'Keefe and David Demares, were also occupants of the car. They traveled north on highway 41. The car traveled at about 20 to 25 miles per hour while within the city limits of the city of Menasha. Upon passing the city limits, Saecker speeded up to pass another car. Royer thereupon protested the rate of speed, and Saecker slowed the car down somewhat, following behind a Dodge car owned by Joseph Schmirler, occupied by members of his family, and driven by his son Earl. After following this car a short distance, Saecker turned out to pass the Schmirler car. Seeing the car of the defendant Phillips approaching from the opposite direction, and being warned by Demares that he could not “make it,” he attempted to again fall in behind the Schmirler car, in which attempt the front bumper of his car struck the rear bumper of the Schmirler car. His car skidded across the road, and was struck by the on-coming Phillips car, causing serious personal injuries to the plaintiff Royer.

The jury found the defendant Saecker negligent in the operation and handling of his car; in that he did not keep a proper lookout; in attempting to pass the Schmirler car; and with respect to the speed at which he operated his car. Saecker does not challenge the sufficiency of the evidence to support the finding of the jury with respect to his negligent conduct. He seeks a reversal of the judgment solely on the ground that the plaintiff Royer was guilty of contributory negligence, and that he assumed the risk. It is contended that the plaintiff failed to keep a proper lookout and that he acquiesced in the rate of speed at which the car was being driven.

The evidence shows that, when Saecker speeded up his car to pass the car just ahead of him after reaching the city limits, Royer did protest against the speed at which Saecker was driving, and suggested that they were not “going to a fire.” After this protest on the part of Royer, Saecker slowed down, and drove from that time until he attempted to pass the Schmirler car but a short distance (the exact distance to be discussed later) at a speed of 35 miles an hour. Upon attempting to pass the Schmirler car, he turned out suddenly and without any warning, and, upon discovering Phillips's car approaching, immediately attempted to regain his place back of the Schmirler car. In view of the fact that plaintiff once protested against the rate of speed, and that thereafter Saecker slowed down and drove at a reasonable rate of speed until attempting to pass the Schmirler car, it certainly cannot be said as a matter of law that Royer acquiesced in the rate of speed.

[1][2] While a guest cannot acquiesce in negligent and reckless driving and recover against the host if injury results therefrom, it was said in Krause v. Hall, 195 Wis. 565, at page 570, 217 N. W. 290, 292, that no “attempt has been made to define the amount of protestation necessary to relieve the guest of contributory negligence as a matter of law,” and in Bryden v. Priem, 190 Wis. 483, 209 N. W. 703, it was held that the failure of a guest to protest against a speed of from 35 to 40 miles an hour for a period of twenty-five seconds is not contributory negligence as a matter of law, where the defendant drove the car at a reasonable and lawful rate of speed up to that time. 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.

[3][4] It is further contended that the plaintiff failed to keep a proper lookout. There was no occasion for him to keep a lookout for cars coming on the left-hand side of the road as long as Saecker was in his proper place at the right-hand side of the road. Saecker left the right-hand side of the road and turned to the left-hand side so suddenly and without any warning that a lookout on the part of Royer, who occupied the rear seat, would not have averted the accident nor accomplished any good purpose. Whether or not the plaintiff kept a proper lookout, his failure, if any, in that respect, did not proximately contribute to the collision. Neither do we consider that the conclusion that Royer assumed the risk is compelled or even justified by the evidence. The contention in this respect is based upon the fact that Royer was frequently a guest in Saecker's automobile, and was perfectly familiar with his habits of driving. However, there is no evidence from which it can be inferred that Saecker was a habitually reckless driver, nor does it appear that he had any habits of driving known to Royer which were responsible for this accident, as was the case in Page v. Page, 199 Wis. 641, 227 N. W....