Zoellner v. Kaiser

• Decision Date: 11 March 1941
• Citation: 237 Wis. 299,296 N.W. 611
• Parties: ZOELLNER v. KAISER et al.
• Court: Wisconsin Supreme Court

237 Wis. 299

296 N.W. 611

ZOELLNER

v.KAISER et al.

Supreme Court of Wisconsin.

March 11, 1941.

Appeal from a judgment of the Circuit Court for Marathon County; George J. Leicht, Judge.

Action for personal injuries by Willard Zoellner against Jerome Kaiser and another. From a judgment for plaintiff, defendants appeal.-[By Editorial Staff.]

Judgment reversed and cause remanded, with direction.

Action by Willard Zoellner against Jerome Kaiser and another, commenced April 8, 1940. From a judgment for plaintiff entered June 20, 1940, the defendants appeal. The facts are stated in the opinion.John L. Schlatterer, of Milwaukee, and Bird, Smith, Okoneski & Puchner, of Wausau, for appellants.

Genrich & Genrich, of Wausau (Herbert L. Terwilliger and James A. Fitzpatrick, both of Wausau, of counsel), for respondent.

FOWLER, Justice.

This is a host-guest automobile collision case. The guest sues the host and his insurer for injuries received when the automobile in which they were riding ran into another automobile so standing on the road as to partially invade the lane of travel of the defendant's automobile. The jury found that the host who was driving the automobile was causally negligent “in respect to lookout and control”; that the guest was causally negligent “for his own safety *** in respect to lookout and control”; apportioned the negligence of the guest as compared to that of the host at 5%; and assessed the damages for the personal injuries of the guest at $4,000. The appellants assign as error (1) refusal of the court to direct a verdict for the defendants because the host was not negligent; (2) refusal to submit to the jury the question of assumption of risk by the guest; (3) refusal to grant judgment for the defendant because the negligence of the plaintiff was equal to that of defendant; (4) refusal to grant a new trial because the assessment of damages was so excessive as to render the verdict perverse.

The evidentiary facts are without dispute. The parties and Harold Oettinger were occupying the driver's seat, the host at the left driving, Oettinger at the right and the plaintiff between these two. They were traveling on a road paved with concrete to a width of eighteen feet with shoulders on each side. The road was dry, straight and level at the place of the accident. They were traveling in the nighttime, forty-five to fifty miles per hour, and had been traveling at that rate during their entire trip. The night was dark, but there was no fog or mist. The headlights of the automobile were good and enabled the driver to see ahead two hundred feet or more. The parked car had no tail light or other lights burning, nor was there any reflector thereon as required by section 85.06 (2), Stats. The color of the automobile was grey or tan, and afforded no contrast to the color of the pavement. The driver and Oettinger first noticed the parked car at the same time when the automobile came within ten to fifteen feet from it. The defendant immediately turned left and applied his brakes but was unable to avoid the parked car and struck it with the right front of his automobile which tipped over. The plaintiff testified that he had no recollection of what occurred just preceding the collision. The windshield of the defendant's car was in two parts with a metal standard dividing the two and carried a rear view mirror above this standard. These rendered the plaintiff's view ahead somewhat obstructed. There was no traffic at the time.

[1] (1) The appellants' main contention is that the finding of the jury that the defendant was negligent as to “lookout and control” is not supported by the evidence. The argument is that these two matters are necessarily involved in and covered by the speed of the cars; that there was no finding of negligence as to speed and without negligence in this respect there was none in the other respects. This is correct as to control. Young v. Nunn, Bush & Weldon Co., 212 Wis. 403, 249 N.W. 278. The evidence shows that defendant did all that could be done in respect to controlling his car on discovering the car ahead. But it is not necessarily so as to lookout. Manifestly one may be negligent as to lookout when driving fifty miles per hour as well as when driving at any other rate. We consider that the jury might form all the evidence infer that had the defendant been maintaining a proper lookout he would have seen the parked car when back of it far enough so that he would have avoided the collision by turning left.

[2][3] The defendant to avoid this inference invokes the rule as to “camouflage” discussed in Colby Cheese Box Co. v. Dallendorfer, 213 Wis. 331, 251 N.W. 447,Brothers v. Berg, 214 Wis. 661, 254 N.W. 384,Mann v. Reliable Transit Co., 217 Wis. 465, 259 N.W. 415, and Butts v. Ward, 227 Wis. 387, 279 N.W. 6. I...