Ven Rooy v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 05 November 1958
• Citation: 5 Wis.2d 374,92 N.W.2d 771
• Parties: Norbert VEN ROOY, and Richard Ven Rooy, by Frank L. Nikolay, Guardian ad litem, Plaintiffs, Appellants, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a Wisconsin Corporation, Defendant, Respondent. Joseph KOLESKE and David Koleske, by Frank L. Nikolay, Guardian ad litem, Plaintiffs, Appellants, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a Wisconsin Corporation, Defendant, Respondent.
• Court: Wisconsin Supreme Court

Page 771

92 N.W.2d 771

5 Wis.2d 374

Norbert VEN ROOY, and Richard Ven Rooy, by Frank L. Nikolay, Guardian ad litem, Plaintiffs, Appellants, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a Wisconsin

Corporation, Defendant, Respondent.

Joseph KOLESKE and David Koleske, by Frank L. Nikolay, Guardian ad litem, Plaintiffs, Appellants, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, a Wisconsin

Corporation, Defendant, Respondent.

Supreme Court of Wisconsin.

Nov. 5, 1958.

Nikolay, Jensen & Scott, Abbotsford, for appellants.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, Paul D. Hilton, Wausau, of counsel, for respondent.

HALLOWS, Justice.

The main issue raised by this appeal is the question of the assumption of risk by the plaintiffs. As a general rule before a guest can be held to have assumed the risk of his host's negligence the evidence must show three factors, to-wit: (1) the hazard or danger inconsistent with the safety of the guest; (2) knowledge and appreciation of the hazard by the guest, and (3) acquiescence or a willingness to proceed in the face of danger. Prunty v. Vandenberg, 1950, 257 Wis. 469, 44 N.W.2d 246. Instructions to the jury in accordance with this rule were given by the trial court in connection with the questions on the assumption of risk. We must assume that the jury in answering these questions did not disregard these instructions.

Negligent lookout as a general rule is ordinarily of such a momentary character that a guest cannot be found to have assumed it, but two exceptions are noted in Bronk v. Mijal, 1957, 275 Wis. 194, 81 N.W.2d 481, namely (1) where a guest acquiesces in a host-driver operating his car for a considerable distance with a wind-shield clouded with frost or moisture, the guest may be found to have assumed the risk of the host's negligent lookout, and (2) where there is evidence that the host to the knowledge of the guest has consumed intoxicating liquor in a quantity which might appreciably interfere with the exercise by the host of ordinary care in the operation of his vehicle, a jury is permitted to find assumption of risk as to lookout. We see no reason under proper circumstances why the second exception should not apply to management and control as well as lookout.

The trial court in its instructions on the first question to which the jury answered Donald, the host, was operating his automobile under the influence of intoxicating beverages, stated the jury should answer the question 'no' if Donald's drinking prior to the accident did not substantially affect and impair his ability to operate and control his automobile at the time of the accident, and if his drinking did substantially affect and impair his ability to properly operate and control his automobile at the time of the accident it should answer the question 'yes.'

In its instructions on questions 2 and 3 the court stated the term 'under the influence of intoxicating beverages' had the same meaning as in the first question. The jury could well have believed that the drinking of Donald appreciably affected his ability to properly operate and control his automobile at the time of the accident but the plaintiffs did not know at the time they entered the car that such was the effect of the host's drinking. There is evidence that both of the plaintiffs knew that Donald had been drinking beer prior to entering the car and that they themselves had been drinking beer. The fact the jury found that the plaintiffs did not know that Donald was under the influence of...