O'Shea v. Lavoy

• Decision Date: 13 December 1921
• Citation: 175 Wis. 456,185 N.W. 525
• Parties: O'SHEA v. LAVOY.
• Court: Wisconsin Supreme Court

175 Wis. 456

185 N.W. 525

O'SHEA

v.LAVOY.

Supreme Court of Wisconsin.

Dec. 13, 1921.

Syllabus by the Court.

The owner of an automobile is not liable for damages to an invited guest riding therein for injuries sustained by the latter, due to the turning over of the machine because of a defective spring, even though it was a secondhand machine and the spring was repaired with old parts.

The question as to what degree of negligence in the management of an automobile by its owner will make him liable for damages to an invited guest riding therein and sustaining injuries, discussed, but not decided.

Appeal from Circuit Court, Marinette County; W. B. Quinlan, Judge.

Action by Dennis O'Shea against John L. Lavoy. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions to dismiss complaint.

The plaintiff is the father-in-law of the defendant, and is about 72 years of age. Both reside at Marinette, Wis. On July 18, 1920, the defendant started in a Chalmers automobile on a trip to Norway, Mich., for the purpose of bringing home one of his children who had been visiting at that place. He took with him his wife, two children, his niece, another lady, the plaintiff and his wife, whom he invited to make the trip with him. The car was a 1915 model. Defendant had purchased it as a secondhand car in 1919. Some time prior to this date, four leaves of the left front spring broke and defendant took the car to a garage and had the spring repaired. The broken leaves were the second, third, fourth, and fifth from the bottom; there being seven leaves in the spring. The garage man substituted some old leaves which he had in the shop for the broken ones and thus repaired the spring. He took some leaves he had in the garage that were a little bit too long, cut off the tapered ends, and fit them the same length as the ones that were broken. This was regarded as a temporary job, and a new spring was ordered. The garage man told defendant that it would not be good policy to run the car too long with the repaired spring, but that it would be safe as long as he watched himself on the road. The garage man testified that he knew the defendant intended to use the car in an ordinary way and that he considered it entirely good and adequate, temporarily, for that purpose. He further testified that there was nothing unusual about using a repaired job on a spring temporarily before a new spring arrives. In fact, it was quite common to do that in that vicinity. He further testified that any part of a car that is made of steel is apt to crystallize after four or five years' use. Between the time of the repair of the spring and the trip in question, defendant ran the car a distance of 1,500 miles, making one trip from Marinette to Milwaukee therewith without any mishap.

While on the trip to Norway, they passed over a small bridge near the village of Daggett, Mich., going at the rate of 15 to 18 miles an hour. Almost immediately thereafter the master (top) leaf of the spring broke very near the front end thereof, where it had no support from the other leaves. This caused the left side of the car to drop down, the fender coming in contact with the tire, which made it impossible to turn the car, which at that time was turned a little to the left and the car slid a short distance and toppled over the edge of the road and down an embankment, turning completely over, causing injury to the plaintiff, to recover damages for which this action was brought.

The defendant testified that when the leaves broke on the former occasion it did not let the fender of the car down unto the front wheel, and that he did not know that such a result would follow from a breaking of the master leaf.

The material allegations of the complaint were to the effect that plaintiff was riding with the defendant in said car as the defendant's invited guest along a public highway, and that said defendant was then and there driving said automobile at an excessive rate of speed, and the said left front spring of the automobile was defective, which fact was well known to the defendant for a long time prior to said date, and which said fact was entirely unknown to this plaintiff; that while it was so driven the said left front spring of said automobile broke, and by reason thereof the said car was thrown over a high embankment, through said defendant's carelessness and negligence. Upon the trial the complaint was amended by striking out the words “at an excessive rate of speed,” and the words “at an ordinary rate of speed” were inserted instead, so that the only negligence on the part of the defendant relied upon at the trial was the using of the automobile with the defective spring, which it was alleged was well known to the defendant for a long time prior to said date.

The jury returned a special verdict in which it was found that the defendant was negligent in using the car at the time in question in the condition it then was; that such negligence was the proximate cause of plaintiff's injuries; that no want of ordinary care on the part of the plaintiff proximately contributed to his injuries; that plaintiff did not voluntarily assume the risk of any danger arising out of the operation, with ordinary care, of defendant's car in the condition in which it was at the time when the trip was commenced; and that the damages sustained by plaintiff were $4,800. Upon this verdict judgment was entered in favor of the plaintiff and against the defendant. From the judgment so entered defendant brings this appeal.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

George B. Evans, of Marinette, and Gerald F. Clifford, and Martin, Martin & Martin, all of Green Bay, for respondent.

OWEN, J. (after stating the facts as above).

The automobile is an instrumentality of recent creation which has rapidly established itself in the desires of the people. No other agency has so effectively appealed to their favor. Nothing contributes so much to the comfort and pleasure, the welfare and happiness, of the family. It has given a new idea to distances and materially enlarged the orbit of individual existence. It affords recreation which appeals to every member of the family and pleasures which may be indulged by the family unit. It is a minister of health as well as pleasure. It makes the fresh air of the country available to the citizen of the congested city and brings the pleasures of the city within the reach of the rural inhabitant. There are many who cannot afford to own an automobile. There are few who do not covet the comfort, pleasure, and recreation afforded thereby. It is an act of kindness and consideration for the owner of a car to lend its comfort and pleasure through an invitation extended to his less fortunate neighbor for a ride in the country, to join a picnic party, or to enjoy an evening at the theater in the nearby city. This is a species of hospitality which should be encouraged rather than discouraged, and the law should not couple with this friendly act a duty which makes its exercise an unreasonable hazard. On the other hand, he who takes his friends and neighbors into his automobile places them in a high-powered, swiftly-moving vehicle attended with great danger unless handled and operated with a requisite degree of care. He must realize that he has voluntarily received into his keeping the lives and safety of his passengers, and he should not be permitted to trifle therewith or to renounce all responsibility in such respect.

Upon these general observations, we apprehend there is little difference of opinion either in law or in human conscience. The difficulty arises in announcing in concrete form, with some degree of definiteness and workability, the exact extent and nature of this duty. It is a question that has not been discussed or decided by this court. While there are numerous decisions elsewhere, the question is nevertheless of recent origin, and the courts are not in complete accord in their method of its treatment,...