Waters v. Markham

• Decision Date: 07 April 1931
• Citation: 235 N.W. 797,204 Wis. 332
• Parties: WATERS v. MARKHAM.
• Court: Wisconsin Supreme Court

204 Wis. 332

235 N.W. 797

WATERS

v.MARKHAM.

Supreme Court of Wisconsin.

April 7, 1931.

Appeal from a judgment of the County Court of Monroe County; R. A. Richards, County Judge.

Action by Sylvia Waters against H. E. Markham, as administrator de bonis non of the estate of J. H. Bruggink, deceased. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff].

Reversed.

This action was commenced March 24, 1930, to recover damages for personal injuries sustained by the plaintiff as a result of the overturning of an automobile in which she was riding as a guest, and which was owned and driven by J. H. Bruggink, now deceased. From a judgment in favor of the plaintiff and against H. E. Markham, as administrator of the estate of J. H. Bruggink, deceased, entered July 15, 1930, the defendant appealed.

On the 3d day of June, 1929, the plaintiff and Rev. Bruggink, her fiancé, were making a trip from Kendall to Sheboygan Falls, Wis., in the latter's Chrysler automobile. The automobile had been purchased and put in use early in 1928. On the trip in question the plaintiff, who was an experienced driver, drove the car for the first fifty miles at a speed of thirty-five to forty miles per hour. When they reached Kilbourn the plaintiff exchanged seats with Rev. Bruggink, who drove the car from there. His driving speed from Kilbourn to Portage was at about the same rate as theretofore maintained by the plaintiff. The brakes and steering apparatus seemed to be in good condition. About twelve miles east of Portage, while proceeding along a good gravel road, twenty-two to twenty-six feet wide, according to the circumstantial physical facts appearing after the accident, the automobile swerved from the center to the right side of the road at an angle of about twenty-five degrees and then ran along the grass-grown but sandy side of the road, substantially parallel with the improved part of the highway, a distance of about ninety-six feet, then suddenly turned back to the graded part of the road at an angle of about forty-five degrees and overturned once or twice. Rev. Bruggink was rendered unconscious and died the following day. The plaintiff sustained severe injuries, and, at the time of the trial, had no recollection of anything that had transpired after leaving Portage and for some time after the accident. With the exception of Rev. Bruggink and the plaintiff, no witness observed the accident, and there is therefore in the record no direct testimony as to just how the accident happened or what caused it. Shortly after the accident two witnesses arrived upon the scene and in a little while others came. From their testimony it quite clearly appears that immediately after the accident the car was lying on its side facing west. The right rear tire was flat. There was a rough jagged hole about an inch to an inch and a half long in that part of the tire which came in contact with the highway. The brakes were not locked. The steering gear appeared to be loose with considerable play in it. Both rear springs were broken off at the front end. The road at the place of accident was slightly down grade in the direction the car was traveling. The road was dry and had little loose gravel on it. One of the witnesses who observed the conditions after the accident found a place near the center of the road at the point where the car first apparently started to turn toward the right, where the dust and sand had been blown away, from which it might reasonably be inferred that the tire had blown out at that point. Commencing a little distance away from this point and continuing to the edge of the gravel a groove track was found. The track along the grass-grown sandy side of the road was broad and quite deep. The roadway between the place where the car abruptly re-entered it and where the car was found contained several gouges or indentations in the surface of the hard gravel road. Rev. Bruggink was lying a short distance to the right of the car, and the plaintiff, when found by the witnesses, was lying in the road about sixty feet east of the car. The plaintiff had known Rev. Bruggink for about eight months and had often ridden with him in his car. They had taken many rides together, averaging three to four each week. Sometimes the plaintiff drove the car, and sometimes Rev. Bruggink did so. It appeared from the plaintiff's testimony that the deceased was at times a fast driver and had at different times driven his car, while the plaintiff was with him, at a speed of sixty miles per hour. The day before the accident the plaintiff and deceased had driven to La Crosse, a distance of sixty miles, and back to Kendall. On the way home the plaintiff, according to her testimony, was as scared as she had ever been in her lifetime on account of the excessive speed at which the deceased drove the car. There is evidence that the tires were the same ones with which the car was equipped when it was purchased; that the car had been driven more than twelve thousand miles; that the tires had given considerable trouble to the deceased by being punctured and going flat; and that the deceased knew of their worn condition. After the accident the right rear tire which blew out was found to have two inside cracks in it, one of which was protected by a boot, but the other one, which was at the place of the blow-out, was not so protected. There was evidence that Rev. Bruggink passed another car shortly before the accident at a point estimated to be about half a mile away from the place of the accident. At that time the Bruggink car was traveling thirty to thirty-five miles per hour. The car passed was traveling about twenty to twenty-five miles an hour. The Bruggink car apparently maintained its same rate of speed until it disappeared over a hill, roughly estimated to be a quarter of a mile to the west of the place of the accident. The plaintiff claimed that the deceased was negligent in respect to speed, operating his car with the tires in the condition they were in, and in respect to control and management of the car at the time of the accident.

The court submitted the issues to the jury by special verdict. In view of the earnest contention of the defendant that the form of the verdict was not proper, in that it did not submit to the jury the real issues involved in this action, it is deemed best to set it forth at length herein. It is as follows:

“1. Did the driver of the car fail to exercise such care as the great mass of mankind ordinarily exercise under the same or similar circumstances in any of the following respects:

(a) In respect to speed? Answer: Yes.

(b) In respect to operating the car with tires in the condition they were in? Answer. Yes.

(c) In respect to the control and management of the car at the time of the accident? Answer. Yes.

2. If to any or all of the subdivisions of question one you answer ‘yes', then was such want of ordinary care a cause that produced the injuries to plaintiff? Answer. Yes.

3. If you answer any or all of the subdivisions of Question No. 1 ‘yes,’ then ought the driver of the car as a person of ordinary intelligence and prudence reasonably to have foreseen from the circumstances that some injury might result from such want of ordinary care? Answer. Yes.

4. Was the plaintiff guilty of want of ordinary care contributing to the injuries she received? Answer. No.

5. At what sum do you assess the damages sustained by the plaintiff? Answer. $7,500.”

On the coming in of the verdict, the usual motions were made by both parties, with the result that plaintiff's motion for judgment was granted and all of the defendant's motions were denied. Judgment was accordingly entered on the verdict for the plaintiff.

Masters & Hansen, of Sparta (Fisher, Cashin & Reinholdt and W. E. Fisher, all of Stevens Point, of counsel), for appellant.

Donovan & Gleiss, of Tomah (Grady, Farnsworth & Walker, of Portage, of counsel), for respondent.

NELSON, J.

[1][2] It is undisputed that the plaintiff, at the time of the accident, was a guest of Rev. Bruggink, the deceased. The legal relation existing between them was that of licensor and licensee, and their respective rights and liabilities were those incidental to such a relation as established by law. Greenfield v. Miller, 173 Wis. 184, 180 N. W. 834, 12 A. L. R. 982;O'Shea v. Lavoy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008;Cleary v. Eckart, 191 Wis. 114, 210 N. W. 267, 51 A. L. R. 576;Thomas v. Steppert, 200 Wis. 388, 228 N. W. 513. It is clearly the law of this state that an automobile host owes to his guest the duty of exercising ordinary care not to increase the danger to the guest which the latter assumes on entering the car, or to create a new danger. Cleary v. Eckart, supra; Poneitowcki v. Harres, 200 Wis. 504, 228 N. W. 126;Sommerfield v. Flury, 198 Wis. 163, 223 N. W. 408;Grandhagen v. Grandhagen, 199 Wis. 315, 225 N. W. 935.

[3] “His duty extends only to refraining from increasing the danger which the guest assumes upon entering the automobile manned by the driver provided, or from adding a new danger.” Cleary v. Eckart, supra, 191 Wis. page 120, 210 N. W. 267, 269, 51 A. L. R. 576. The danger which the host is under obligation not to increase is obviously the danger which may be anticipated and which is assumed by the guest upon entering the car. Sommerfield v. Flury, supra; Grandhagen v. Grandhagen, supra. On entering an automobile and accepting the hospitality offered, a guest accepts the automobile in the condition in which it exists and as then maintained by its owner. Cleary v. Eckart, supra.

The foregoing rules of law applicable to the relation of licensor and licensee are, however, subject to the proviso that the host does not fail in the duty of warning his guest as to any latent or concealed defect, in the nature of a trap, which is known to him, but unknown to the guest, and which the host believes to be dangerous and which he realizes involves an unreasonable...