Young v. Nunn, Bush & Weldon Shoe Co.

• Decision Date: 29 June 1933
• Court: Wisconsin Supreme Court
• Parties: YOUNG v. NUNN, BUSH & WELDON SHOE CO. ET AL.

212 Wis. 403

249 N.W. 278

YOUNG

v.NUNN, BUSH & WELDON SHOE CO. ET AL.^a1

Supreme Court of Wisconsin.

June 29, 1933.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto Breidenbach, Circuit Judge.

Action by Anna E. Young against the Nunn, Bush & Weldon Shoe Company and Frank Petras. Judgment for plaintiff and judgment for contribution in favor of defendant first named against defendant second named, and defendants appeal.--[[[By Editorial Staff.]

Reversed and remanded, with directions.

Plaintiff commenced her action on September 17, 1930, to recover against the defendants, Nunn, Bush & Weldon Shoe Company and Frank Petras, for injuries sustained in an automobile accident which occurred on August 27, 1929.

The plaintiff is a sister of the defendant Petras, and both she and Petras lived in Chicago. Prior to 1928, Petras, who was a mail carrier, had not owned or driven a car. He purchased a car in that year and had driven it about 8,000 or 9,000 miles at the time of the accident. Plaintiff had driven cars for three or four years, and had frequently accompanied her brother as his guest. On the date of the accident, plaintiff, her mother, and a friend, Mrs. Masty, drove to Milwaukee with Petras, arriving about noon. After lunch, they started to drive to Wauwatosa. They were driving west on Center street, which is an east and west street, fifty feet wide and carrying two street car tracks. Center street is intersected at right angles by Eleventh street, which is thirty-four feet wide. At the intersection of Center and Eleventh streets, Petras drove his car into an iron trolley pole at the northwest corner of the intersection, and plaintiff's injuries were the result of this accident.

It was the claim that the Nunn-Bush truck, which was proceeding west on Center street just in front of the car of Petras and to its left, suddenly turned to the right to avoid a truck proceeding north on Eleventh street, and that this cut off the path of Petras, who was evidently about to pass the Nunn-Bush truck upon the right, compelling Petras to turn sharply to the right and hit the post.

The case was tried to the court and a jury, and sixteen questions were submitted. The jury found that the driver of the Nunn-Bush truck was negligent with respect to keeping a proper lookout for vehicles on Eleventh street, and in swerving his truck to the right without ascertaining whether such movement could be made with safety to other vehicles, in failing to give a signal of his intention to swing to the right, and in the speed at which the truck was operated. The jury exonerated him from negligence with respect to control. Each item of negligence, except speed, was found to have been a cause of plaintiff's injuries. The jury found that defendant Petras was negligent with respect to speed, lookout, and control, and that these items of negligence were proximate causes of the injury to plaintiff. In addition to this, the jury found that at the time in question defendant Petras was attempting to pass to the right of the Nunn-Bush truck, that this constituted negligence, and that the injuries of the plaintiff were a natural and probable result of such negligence. Plaintiff was exonerated from contributory negligence with respect to lookout and with respect to making protest as to speed and manner of operation of the car by Petras. In question 14 the jury found that Petras operated his automobile at and immediately prior to the collision in the same manner that he usually and ordinarily operated it to the knowledge of plaintiff, Anna Young, in respect to speed, management, and control. Plaintiff's damages were assessed at $20,000. Plaintiff moved for judgment upon the verdict, and also to change the answer to question 14. The court declined to change the answer, but ordered judgment for plaintiff notwithstanding the verdict, upon the ground that the fourteenth question did not relate to the momentary control or management of the car involved in swerving from its accustomed path. Judgment was entered for the plaintiff and also in favor of the defendant Nunn, Bush & Weldon Shoe Company, for contribution against Petras. Defendants appeal.

Hayes, Coleman, McCauley & Hayes, Upham, Black, Russell & Richardson, and Quarles, Spence & Quarles, all of Milwaukee (Chas. W. Reeder, William A. Hayes, and Kenneth P. Grubb, all of Milwaukee, and A. R. Peterson, of Chicago, Ill., of counsel), for appellants.

Wolfe & Hart, of Milwaukee, for respondent.

WICKHEM, Justice.

Since this case involves the appeals of two alleged joint tort-feasors, each making separate contentions, it will be convenient to consider these contentions separately.

Between the defendant Petras and the plaintiff there existed the relation of host and guest, and consequently the contentions of this defendant have to do with the legal consequences of this relation. It is Petras' contention that the evidence shows, and the jury found, defendant to have been driving his car, at the time he swerved and struck the pole, in the same manner that he had always driven when plaintiff was with him; that under the decisions plaintiff as guest accepted the defendant and his vehicle in their condition, with such skill as defendant possessed and subject to his known habits of driving. It was the position of the trial court that the finding of the jury in question 14 that defendant was driving his car in the same manner in which he usually and ordinarily operated it, to the knowledge of plaintiff, did not relate to the conduct of defendant after entering the intersection. It was evidently the view of the trial court that, while plaintiff may have acquiesced in the speed and management of the car as it approached the intersection, she could not have had the opportunity to acquiesce in or protest Petras' conduct in swerving to avoid the truck; that the negligence found against Petras with respect to control was of the momentary or instantaneous variety, upon which this court has had occasion to comment in Goehmann v. National Biscuit Co., 204 Wis. 427, 235 N. W. 792.

It is the contention of Petras that the only negligence on his part which proximately contributed to the result consisted in the speed at which he operated his car, and his intention, evidenced for some time prior to the collision, to pass the Nunn-Bush truck on its right, at or near the intersection; that these were not momentary matters; that plaintiff acquiesced in the manner of driving for the reason that this was Petras' ordinary and usual manner of driving and for the further reason that she made no protest. This leads to defendant's claim that upon the verdict and under the decisions of this court he is entitled to judgment regardless of the jury's finding of negligence, and that the case falls clearly within the doctrine of Knipfer v. Shaw (Wis.) 246 N. W. 328, 329, in which this court, speaking through Mr. Justice Nelson, stated that there can be no recovery when these elements are present: (1) A hazard or danger inconsistent with the safety of the guest; (2) knowledge and appreciation of the hazard by the guest; (3) acquiescence or a willingness to proceed in the face of the danger.

No useful service will be performed by an exhaustive restatement or re-examination of the host-guest rule as applied in the cases of Cleary v. Eckart, 191 Wis. 114, 210 N. W. 267, 51 A. L. R. 576;Olson v. Hermansen, ...