Steinkrause v. Eckstein

• Decision Date: 13 January 1920
• Citation: 175 N.W. 988,170 Wis. 487
• Parties: STEINKRAUSE v. ECKSTEIN.
• Court: Wisconsin Supreme Court

170 Wis. 487

175 N.W. 988

STEINKRAUSE

v.ECKSTEIN.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Milwaukee County; Wm. J. Turner, Judge.

Action by Alvina Steinkrause against Arthur F. Eckstein. From a judgment for defendant in the civil court, plaintiff appealed to the circuit court, and from an order of that court, granting a new trial, defendant appeals. Affirmed.

The plaintiff, one of a party of three young women and three young men, while riding in an automobile south on Twelfth street and at about the center of its intersection with Wells street in the city of Milwaukee, was injured by reason of a collision between that automobile and one driven by defendant's servant coming west on Wells street.

The automobile in which plaintiff was riding was owned by a copartnership, one member of which was the father of its driver, and it was used on this occasion without the permission of the owners. The party had driven out west of the city of Milwaukee during the evening, visiting several road-houses or saloons, one of such being described as the “Bungalow,” and were returning home late at night.

Defendant contends that the driver of the automobile in which plaintiff was riding was intoxicated at the time of the accident. The only evidence on that point was elicited from the driver himself, who testified substantially as follows:

“I had a few drinks there [the Bungalow], but do not remember what I drank, nor how many drinks I had. When we left the Bungalow I was not intoxicated. * * * I was so excited, and at the time of the collision was slightly intoxicated; I had a few drinks, as I said. * * * At the Bungalow I did not feel what I had been drinking, but we went to the other place, I do not remember what I had to drink. Then we went to the Half Way House on the Blue Mound road, stopped and had some more drinks. I could not say how many I had there. I did not have too many, but I had enough. I had just about enough. By the time I got down town I felt slightly what I had been drinking. It is true that I was slightly intoxicated.”

There was evidence to the effect that the muffler was open on this automobile at the time of the collision, and evidence to the contrary.

There was evidence tending to show actionable negligence by defendant's driver.

At the close of the testimony in the civil court defendant's motion for a directed verdict in his favor was granted, and judgment entered thereupon. From such judgment the plaintiff appealed to the circuit court, and was granted a new trial of said cause in said circuit court. From such order the defendant has appealed.

Bloodgood, Kemper & Bloodgood, of Milwaukee (Albert K. Stebbins and Emmet Horan, Jr., both of Milwaukee, of counsel), for appellant.

George A. Bowman, of Milwaukee, for respondent.

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

The appealing defendant insists that the circuit court was wrong in granting a new trial and the civil court right in granting judgment of dismissal upon the theory that negligence of the driver of the automobile in which plaintiff was riding is imputed to the plaintiff, and that she cannot recover because there was such contributory negligence as a matter of law on the part of the driver as made an absolute defense. Also that such contributory negligence by the driver arose by reason of his violating, at the time of the injury, one or more of the three following statutory provisions:

Section 1636--54, Stats., punishing by fine or imprisonment, or both, any person who shall operate or drive any automobile upon or along any public highway of this state while intoxicated.

Section 1636--52m, Stats., providing in substance that the use or operation of an automobile upon a public highway without the consent of the owner of such vehicle is an offense punishable by imprisonment or fine, or both.

Section 1636--49, Stats., making it unlawful for any person to operate an automobile with its muffler open upon or along any public streets within the corporate limits of any city, and punishing for violation thereof by a fine.

[1] It is the accepted law in this jurisdiction that any occupant of a private vehicle, such as the automobile in this case, is barred from recovering from a third person for injuries caused by such person's negligence if the driver of such vehicle is also properly chargeable with negligence proximately contributing to the accident. Kadolph v. Herman, 166 Wis. 577, 580, 166 N. W. 433;Lauson v. Fond du Lac, 141 Wis. 57, 58, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30.

[2][3] It is a well-established rule that while a violation of such statutory regulations as are relied upon by defendant here is negligence per se, yet where such negligence is relied upon, either as ground of recovery for an injury or as the defense in such an action of contributory negligence, there still must appear some causal connection between any such violation and the accident. In some situations the causal...