Scory v. La Fave

• Decision Date: 07 May 1934
• Citation: 215 Wis. 21,254 N.W. 643
• Parties: SCORY v. LA FAVE ET AL.
• Court: Wisconsin Supreme Court

215 Wis. 21

254 N.W. 643

SCORY

v.LA FAVE ET AL.

Supreme Court of Wisconsin.

April 3, 1934.

Dissenting Opinion May 7, 1934.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge.

Action by Laverne Scory, by her guardian ad litem, against Blanche La Fave, the Autoist Mutual Insurance Company, and Russell Swanson.From a judgment for defendants, notwithstanding the verdict, plaintiff appeals.--[By Editorial Staff.]

Judgment affirmed as to the defendantsBlanche La Fave and the Autoist Mutual Insurance Company, and reversed as to defendantRussell Swanson, and remanded, with directions.

Action brought on behalf of Laverne Scory, a minor, to recover damages for personal injuries sustained by her when she was struck by an automobile operated by the defendantRussell Swanson, as she was about to enter, as a guest of the defendantBlanche La Fave, an automobile operated by the latter.On a trial by jury, a special verdict was returned finding that negligence on the part of both defendants caused the injuries sustained by Laverne Scory, and that she was not guilty of negligence.However, on motions after verdict, the court held that she was guilty of contributory negligence or had assumed the risk, and therefore was not entitled to recover from any of the defendants.Accordingly, judgment was entered dismissing her complaint, and she appealed.

FOWLER, J., dissenting.

Clifford & Dilweg, of Green Bay, for appellant.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for respondents La Fave and another.

Kaftan, Rahr & Kaftan, of Green Bay, for respondent Swanson.

FRITZ, Justice.

Laverne Scory(who was twenty years of age in 1932, and will hereinafter be called the plaintiff) was injured at about 8 p. m. on April 8, 1932, when she was struck by a south-bound automobile, operated by the defendantRussell Swanson, while she was standing on the west shoulder of the highway, near the left rear side of an automobile, which had been left there, facing north, by the defendantMrs. Blanche La Fave.At the time of the accident, plaintiff was about to either enter or help move Mrs. La Fave's automobile so as to continue to ride therein as a guest.Shortly prior thereto Mrs. La Fave had either voluntarily parked her automobile at that place, or had left it there because it became stalled in mud, and had walked with plaintiff to a nearby farm house to call for Mrs. Bessie Blohn to ride with them.At that place the highway coming from the south curved somewhat to the northeast, and continued in that direction without any curve for 925 feet to another curve.The traveled portion of the highway was concreted to a width of 16 feet, and on each side thereof there was a dirt shoulder, which joined the lawn of the farm at the place where Mrs. La Fave left her automobile.When Mrs. La Fave, accompanied by plaintiff and Mrs. Blohn, returned to her automobile, she got into the driver's seat and turned up the lights, which had been left lit, but turned down, while calling for Mrs. Blohn.The defendant Swanson, approaching at 40 miles per hour, had just turned southwestward on the curve, which was 925 feet to the northeast of Mrs. La Fave's automobile, when he noticed her turn up the lights; and she likewise saw his automobile as it approached.Plaintiff had walked to the rear left side of Mrs. La Fave's automobile before Swanson had made the turn in the curve, which brought his automobile into view, and from her position, as she stood there waiting for Mrs. La Fave to start her automobile, she did not see Swanson approaching.Meanwhile Mrs. Blohn had walked to the right side of Mrs. La Fave's automobile, where she could see Swanson approaching.As Swanson approached to within 150 feet from Mrs. La Fave's automobile, he became blinded by the lights thereof, and, because of water on the highway at that point, he could not see the edge of the concrete.Nevertheless, he continued to travel those 150 feet without reducing his speed from 40 miles per hour, and failed to turn to his left with the curve in the highway immediately to the northeast of Mrs. La Fave's automobile.Instead, he ran off the westerly side of the concrete and headed for Mrs. La Fave's automobile.As soon as Mrs. La Fave and Mrs. Blohn saw that Swanson's automobile was not turning with the curve, they yelled.Immediately Mrs. Blohn ran to the rear of Mrs. La Fave's automobile, and Mrs. La Fave quickly jumped out on the left side and also ran to the rear thereof.She tried to pull plaintiff out of the way of Swanson's approaching automobile, but plaintiff was so startled and frightened that Mrs. La Fave could not save her from being struck by Swanson's automobile.

The jury, in a special verdict, found that Mrs. La Fave intentionally parked her automobile facing the curve, on the left side of the highway, and that she was negligent in that respect, that she was also negligent in turning on the bright lights while her automobile was in that position, and that thereby she increased the danger or added a new danger to plaintiff, and that her negligence in each of those respects was a proximate cause of the accident.Likewise the jury found that Swanson was negligent in respect to the speed at which he operated his automobile after being blinded by the lights of Mrs. La Fave's automobile; and that such negligence on his part was a proximate cause of the collision.On the other hand, the jury found that plaintiff was not negligent with respect to her own safety when she approached the La Fave automobile to re-enter it while it was on the left side of the highway.

On motions by the defendants for judgment notwithstanding the verdict, the court held that plaintiff either was guilty of contributory negligence or that she assumed the risk, and that therefore she was not entitled to recover from any of the defendants.A review of the record discloses that the evidence warranted the findings of the jury in all respects, including that plaintiff was not guilty of contributory negligence.However, it must be noted that the issue of whether plaintiff assumed the risk of Mrs. La Fave's negligent acts was not submitted to the jury.

[1][2] As Mrs. La Fave intentionally parked her automobile on the left side of the highway, which was in violation of section 85.19 (2), (9), Stats., she was negligent, as a matter of law, in that respect.On the other hand, it is undisputed that plaintiff knew that the automobile was parked on the wrong side, that it should not be parked there, and that she voluntarily stepped along side of it either to help move or to re-enter it in order to continue riding therein as a guest of Mrs. La Fave.Under those circumstances, in respect to that unlawful parking, the evidence established conclusively that there were present (1) a hazard or danger inconsistent with the safety of a guest; (2) knowledge and appreciation of the hazard by plaintiff; and (3) acquiescence or a willingness on her part to proceed in the face of the danger.Consequently plaintiff assumed the risk of that unlawful parking, and cannot recover from her host, Mrs. La Fave, for her negligence in that respect.Knipfer v. Shaw, 210 Wis. 617, 621, 246 N. W. 328, 247 N. W. 320;Young v. Nunn, Bush & Weldon Shoe Co.(Wis.)249 N. W. 278;Walker v. Kroger Grocery & Baking Co.(Wis.)252 N. W. 721.

[3][4] Whether, under the evidence, the court was warranted in holding, without having the jury find to that effect, that plaintiff also assumed the risk because of Mrs. La Fave's negligence in turning on the bright lights while facing a curve on the left side of the highway, is debatable.Although plaintiff knew that the lights had been left lit when the automobile was parked, there is evidence that the lights were dim when she and Mrs. La Fave left the automobile, and that she did not notice Mrs. La Fave turn up the lights when they returned to it.However, it is immaterial under the law applicable to the facts of this case whether plaintiff did or did not assume the risk of an increase in danger as the result of Mrs. La Fave's negligence in turning up the lights.

Swanson was not misled merely because he was blinded by Mrs. La Fave's bright lights after he came within 150 feet thereof.On the contrary, because the lights faced him, he thought an automobile was coming toward him, and that caused him to keep to the right of it.He would have done the same if the lights had been left dim or turned down.He probably would not have been thus misled if the automobile had not been parked on the wrong side of the road, and whether incidentally the lights thereon were bright or dim was of no controlling significance.Likewise, it is probable that, if Mrs. La Fave's automobile had been on the right side of the road, the mere turning up of the lights would not have caused the accident.Consequently the injury to plaintiff, which followed the combination of her host's negligent acts, was primarily caused rather by the latter's antecedent negligence in parking than by the subsequent turning up of the lights.Under the circumstances, as Mrs. La Fave's negligence in the latter respect cannot well be separated from her prior negligence in parking, which actually created the dangerous situation assumed by plaintiff, she is also deemed, in law, to have assumed the risk involved in that situation by reason of her host's negligence in incidentally increasing the danger by turning up the lights.Young v. Nunn, Bush & Weldon Shoe Co., supra, Walker v. Kroger Grocery & Baking Co., supra.It follows that, as to Mrs. La Fave, plaintiff's right to recover from her is defeated by her assumption of the risk, regardless of whether plaintiff was or was not also guilty of contributory negligence in approaching Mrs. La Fave's automobile while it was parked on the left side of the highway.

[5][6][7][8] Although there is some confusion and conflict in the authorities (see18 R. C. L.p. 673, §...