Theisen v. Milwaukee Auto. Mut. Ins. Co.

• Decision Date: 27 November 1962
• Citation: 18 Wis.2d 91,118 N.W.2d 140
• Parties: Sharon THEISEN, an infant, by Fred Theisen, her guardian, et al., Plaintiffs-Respondents, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 140

118 N.W.2d 140

18 Wis.2d 91

Sharon THEISEN, an infant, by Fred Theisen, her guardian, et al., Plaintiffs-Respondents, v. MILWAUKEE AUTOMOBILE MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.

Supreme Court of Wisconsin.

Nov. 27, 1962.

Rehearing Denied Feb. 5, 1963.

Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellant.

Fugina, Kostner & Ward, Arcadia, for respondent.

HALLOWS, Justice.

This is a case of a sleeping driver. On the evening of November 16th, 1960, the plaintiff and Shepherd participated in the Arcadia high school senior class play in which Shepherd had the leading role. The play was over about 10:15. The members of the cast and those associated with the production, numbering in all about 30, were invited to a party at the home of Alfred Service, father of one of the members of the cast. Service lived about seven miles west of Arcadia on Highway 95. After the play, the young folks went to a cafe in Arcadia, then to a dancehall and danced, and about midnight started for the Service home. Upon arriving there, the girls prepared a lunch. The party then went on a hayride for about an hour, and upon returning to the house, played the piano, danced and talked. Shepherd brought a fifth of liquor to the house. At the party, beer or sloe gin, or both, were consumed, but there is no evidence anyone became intoxicated. Some of the girls testified the liquor could not be felt or not very much, or made them tired or sleepy or drowsy. The only evidence concerning Shepherd's drinking is by one of the girls who said she saw him with a drink in his hand.

About 3:00 a. m. the party broke up and five girls, including the plaintiff, got into Shepherd's car for the ride home. The plaintiff sat in the rear left seat. These girls testified they were tired and one stated the car was warm which just naturally made them drowsy. About four miles from the Service home the Shepherd car, as it was traveling east toward Arcadia on a straight level stretch of Highway 95, gradually veered from its right lane to the left lane and onto the shoulder of the road. At this time, at least all the girls were asleep or dozing. When the car left the pavement, one of the girls in the front seat woke up and shouted, 'Louis, lookout' but there was no reaction; she thought Louis was asleep. Another girl hollered 'Louie' but Shepherd did not move. The car proceeded on its course 270 feet until it hit a large tree stump on the north side of the road about 10 feet from the edge of the blacktop.

The defendant contends Shepherd's going to sleep was an unknown physical impairment which caused him to lose control of the car and, consequently, could not constitute negligence. The gist of the argument is Shepherd went to sleep unknowingly from physical exhaustion and the case should be governed by the principles applicable to sudden unforeseen physical disability over which a driver has no control, such as being the victim of a heart attack, epileptic seizure, or other loss of consciousness which is sudden and unforeseen. Arguendo, it may be stated acts done while one is asleep are not voluntary and in and of themselves do not constitute negligence. Bushnell v. Bushnell (1925), 103 Conn. 583, 131 A. 432, 44 A.L.R. 785. See also Steele v. Lackey (1935), 107 Vt. 192, 177 A. 309; Kaplan v. Kaplan (1931), 213 Iowa 646, 239 N.W. 682 [recklessness]. The basis, however, for liability of the sleeping driver is his negligence in falling asleep.

Normally no harm will be done if one falls asleep reading the newspaper after dinner or this opinion. In the horse and buggy days, one might have fallen asleep while driving and the horse quite likely would have had enough horse sense to stop or even to take the driver home through habit and instinct quite safely. But falling asleep behind a wheel of an auto propelled by 200 or 300 mechanical horses having no horse sense is entirely a different matter in terms of your duty to others. We recently pointed out ¹ the increase in the frequency and in the seriousness of the consequences of automobile accidents today resulting from modern, high-powered vehicles. The increase in risks and hazards of driving an automobile on public highways demands greater skill and attention than 40 years ago. When one is under a duty to use care not to injure another, he cannot fulfill the duty by falling asleep.

We must approach a sleeping driver case on the premise the driver has the duty to stay awake while he drives and it is within his control either to stay awake, to cease driving, or not to drive at all when sleepy. Up to now no decision has gone beyond the limits of the well established rule that the fact the driver of an automobile goes to sleep while driving is a proper basis for an inference of negligence sufficient to make a prima facie case and support a verdict for recovery if no circumstances tending to excuse or justify such conduct are proven. This problem is the subject of an extensive annotation, Automobile--Illness or Drowsiness, 28 A.L.R.2d 12. In Krantz v. Krantz (1933), 211 Wis. 249, 248 N.W. 155, this court recognized that rule and relied on the leading case of Bushnell v. Bushnell, supra, which sets forth a medical basis for the rule. The inference of negligence which arises from 'sleeping at the wheel' is based on the judicial recognition that sleep ordinarily does not occur without some notice and to fall asleep while driving is the usual result of negligence in failing to heed the warning. See for medical and psychological theories of the nature of sleep, Kaplan v. Kaplan, supra; Paulson v. Hanson (1939), 226 Iowa 858, 285 N.W. 189 and Rice-Stix Dry Goods Co. v. Self (1935), 20 Tenn.App. 498, 101 S.W.2d 132.

Whatever the medical and scientific basis may be for the inference, we find no justification in the common experience of mankind for one's falling asleep with his foot on the accelerator, his hands on the wheel and his auto transformed into an instrument of destruction. The process of falling asleep--normal and healthy sleep--is a matter of common experience and usually attended by premonitory warnings or is to be expected. Such warnings or reasonable expectations of sleep are especially accentuated when one is conscious of his duty to stay awake while driving and the failure to heed such warnings and permitting oneself to fall asleep while driving an automobile must be deemed negligence as a matter of law. If while driving a car one is in such a state of exhaustion that he falls asleep without any premonitory warning, he is chargeable with the knowledge of any ordinarily prudent man that such exhaustion is reasonably likely to cause sleep while driving. Wis. Natural Gas Co. v. Employers Mut. Liability Ins. Co. (1953), 263 Wis. 633, 58 N.W.2d 424. Although it has been argued the liability of a sleeping driver should be absolute on the grounds of an extra hazardous activity, ² we do not base our decision on that ground but hold that falling asleep at the wheel is negligence as a matter of law because no facts can exist which will justify, excuse or exculpate such negligence. The language in earlier Wisconsin cases that falling asleep while driving may be excusable is overruled.

We exclude from this holding those exceptional cases of loss of consciousness resulting from injury inflicted by an outside force or fainting or heart attack, epileptic seizure, or other illness which suddenly incapacitates the driver of an automobile and when the occurrence of such disability is not attended with sufficient warning or should not have been reasonably foreseen. When, however, such occurrence should have been reasonably foreseen, we have held the driver of a motor vehicle negligent as a matter of law, as in the sleep cases. Eleason v. Western Casualty & Surety Co. (1948), 254 Wis. 134, 35 N.W.2d 301 (epilepsy); Wis. Natural Gas Co. v. Employers Mut. Liability Ins. Co., supra. Likewise, in Krueger v. Krueger (1929), 197 Wis. 588, 222 N.W. 784, decided before implied assumption of risk was abolished, we held a guest assumed the risk as a matter of law of the driver falling asleep when the guest had knowledge of the driver's condition and sleep was reasonably to be expected.

The party claiming the driver fell asleep while driving has the burden of proving the driver in fact, fell asleep. If the evidence, whether direct or by permissible inference, tends to establish the fact, such evidence casts a burden upon the party seeking to excuse the driver's loss of consciousness--the burden of showing the greater probability that the loss of consciousness is excusable on some nonactionable basis.

The trial court excluded an offer of proof made by the defendant which would have shown Shepherd was not an habitual user of alcoholic beverages and was physically exhausted from the loss of considerable sleep for some six weeks prior to the accident practicing for the play, getting to bed later than his normal bedtime and continuing his usual farm chores. It was not error of the trial court to reject this evidence offered to prove a justification for going to sleep. On the contrary, such proof would have tended to show Shepherd should have known, as a reasonable prudent man, he was likely to have fallen asleep. Such offer of proof, of course, is immaterial under our holding that falling asleep while driving is negligence as a matter of law.

The defendant contends Shepherd was entitled to an instruction on the presumption of due care accorded a deceased party, relying on Seligman v. Hammond (1931), 205 Wis. 199, 236 N.W. 115. Later cases have not followed the strong language of that case which characterized the presumption as very substantial and, although not constituting affirmative evidence that due care was exercised, as requiring proof to the contrary in order to remove its persuasive force. This presumption is a limited one, is not evidence and is sufficient only to place upon the...