Storlie v. Hartford Accident & Indem. Co.

• Decision Date: 14 October 1947
• Court: Wisconsin Supreme Court
• Parties: STORLIE et al. v. HARTFORD ACCIDENT & INDEMNITY CO.

251 Wis. 340

28 N.W.2d 920

STORLIE et al.

v.HARTFORD ACCIDENT & INDEMNITY CO.

Supreme Court of Wisconsin.

Oct. 14, 1947.

Appeal from a judgment of the Circuit Court for Eau Claire County; Clarence E. Rinehard, Judge.

Affirmed.

Action commenced October 18, 1946, by Jennie Storlie, Ida Storlie, Doris Klees and James Klees, all of whom were guests in an automobile, and Olford Storlie and Carlyn Storlie, husbands of the first named guests. Action was against Hartford Accident and Indemnity Co., a foreign corporation, insurer of the car in which plaintiff guests were riding. Judgement entered April 16, 1947, dismissing the complaint with costs to the defendant.

The accident occurred about 3:00 A.M. on April 25, 1946, on Highway 85, four miles east of the City of Durand. Early that evening the occupants of the car had driven from Eau Claire, Wisconsin, to Wabasha, Minnesota, to attend a wedding dance. It was on their return to Eau Claire that the accident occurred. The car was being driven by Jarla Evenson, a twenty-six year old woman, who had done her regular work in a factory before leaving Eau Claire with the others to go to Wabasha.

All of the occupants of the car except the driver and Jennie Storlie were sleeping at the time the accident occurred. The driver failed to negotiate a left turn; the car left the highway and overturned, causing the injuries for which damages are sought in this action. The only testimony in the record relative to how the accident occurred is that of Jennie Storlie, who testified, ‘We were driving along and we were going east and there was a curve, and well, I don't know, all I can rememeber I seen we were getting closer and closer toward the edge and all of a sudden there was just a rumble and that is all.’ The driver of the car was not called upon to testify.

In a special verdict the jury found the driver negligent as to management and control and as to lookout. Her negligence in eah of those respects was found to be causal. Each guest was found to have been negligent in failing to use ordinary care for his own safety, and each guest's negligence was found to amount to 25%, as compared to the driver's 75%. The jury made the additional finding that each of the guests at and just prior to the time of the accident acquiesced in the manner in which Jarla Evenson was operating said automobile and assumed the risk of any injury resulting therefrom. There were additional findings as to the damages sustained by each of the guests.

The trial court dismissed the action, and in his Memorandum Decision said: ‘In any event, the jury found on the verdict as submitted that the passengers assumed the risk as to the control and management of the automobile as it was being operated by the driver thereof. Such negligence so assumed, when added to the 25 per cent contributing negligence of each passenger found by the jury, must be held to at least equal other negligence of the driver and to preclude any recovery by the plaintiffs.’

Frank L. Morrow, of Eau Claire, for appellants.

Stafford & Stafford, of Chippewa Falls, for respondent.

FAIRCHILD, Justice.

This appeal is concerned with determining whether the evidence sustains the finding of negligence on the part of the driver, the finding of contributory negligence on the part of the guests, and the finding that the guests had assumed the risk of any injury resulting from the driver's control and management of the car.

The trial below proceeded on some theory of negligence. However, the evidence does not disclose what, if anything, constituted the failure to use ordinary care. There is no evidence in the record as to how the accident happened on which the jury's finding of negligence can be sustained. The circumstances of the accident may be consistent with the theory that the driver was weary after a long day of factory work in Equ Claire, the trip to Wabasha and the evening's dancing, and that her weariness resulted in failure to maintain an adequate lookout and in failure to properly manage the car. But did such exhaustion exist? And did it cause the accident? The occupants of the car testified that the driver had not evidenced sleepiness. The owner of the car testified that she had assured him she was not sleepy. The one occupant who was awake at the time of the accident had been awake at all times...