Williams v. Williams
| Decision Date | 10 January 1933 |
| Citation | 246 N.W. 322,210 Wis. 304 |
| Parties | WILLIAMS v. WILLIAMS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the County Court of Waukesha County; David W. Agnew, County Judge.
Action by Lucille Williams against Rodney Williams. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]
Affirmed.
Action to recover for personal injuries grounded on alleged negligence commenced July 13, 1931. From a judgment entered December 30, 1931, in favor of the plaintiff, the defendant appeals.
The plaintiff sued her husband to recover for injuries sustained through his starting an automobile in which she had been riding with him and from which she had just alighted under circumstances which she claims rendered his starting of it negligent. The parties had just arrived home. The defendant had stopped the car for the plaintiff to alight on the driveway to his garage where it crossed the sidewalk in front of the home. The plaintiff had just alighted and assisted a child out of the car and was standing two feet at the side of the car opposite the rear wheels. The car wheels stood on a slight slope towards plaintiff on smooth ice covered with fresh snow. The parties had been quarreling on the ride home and the defendant was angry. He gave vent to his anger by racing his engine as he started the car, causing the wheels to spin and skid towards the plaintiff and strike her, knocking her down and injuring her knee. The jury found that the defendant was, and that the plaintiff was not, negligent, and that the defendant's negligence caused plaintiff's injuries. They assessed the plaintiff's damages at $2,000. The court reduced the damages to $1,000 and awarded judgment to plaintiff for that sum.
Lockney & Lowry, of Waukesha, for appellant.
Young & Volk, of Waukesha, for respondent.
The appellant assigns as error: (1) That a verdict should have been directed because the defendant as matter of law was not negligent; (2) because the plaintiff was guilty of contributory negligence as matter of law; (3) that the form of the special verdict is insufficient and questions requested by the appellant should have been submitted; (4) that improper testimony was received; (5) that instructions were erroneous; (6) that the court should have further reduced the damages; and (7) that a new trial should have been granted by reason of facts brought to the attention of the court by affidavit after return of the verdict.
[1] 1. In Crombie v. Powers, 200 Wis. 299, 227 N. W. 278, the defendant stopped her car for the plaintiff, a guest riding in the back seat, to alight. The car door opened towards the back. As the guest stood beside the car on alighting, the defendant started her car and the door caught the guest, throwing her forward and injuring her. At page 302 of the opinion in 200 Wis., 227 N. W. 278, 280, the court states: “The jury may well have thought that the defendant * * * was not negligent because she had given the plaintiff a reasonable opportunity to alight and clear herself from the car.” From the statement quoted it is a necessary inference that a driver is negligent if in stopping his car for a guest to alight he does not give the guest reasonable opportunity to get clear of the car before starting it if under the circumstances starting it is likely to cause injury to the guest. Upon like reason is a host negligent if by reason of his manner of starting his car he is likely to cause injury to a guest who has just alighted and has not been given reasonable opportunity to get into a position of safety.
[2] We are of opinion that the jury was warranted in inferring negligence of the defendant under this rule. They might properly consider that the defendant ought to have foreseen that starting the car as he did was likely to cause the wheels to spin and skid towards the plaintiff and in not noticing that the plaintiff was so close to the car that she was likely to be struck by its skidding. The defendant testified: The defendant's manner of starting the car appears from the plaintiff's testimony stated below.
[3] 2. We are also of opinion that the finding that the plaintiff was not negligent must be sustained. The plaintiff testified: She also testified that the engine was “racing,” and that the car skidded.
It is claimed that the plaintiff assumed the risk of injury because she knew her husband's habits of driving. But the accident did not occur while she was riding, and there is no evidence that the defendant had a habit of starting his car by racing his engine or without giving one alighting time to get clear.
3. The questions submitted to the jury were: (a) Was defendant negligent in operating his...
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