Opinion
March 3, 1954 —
April 6, 1954.
APPEAL from parts of a judgment of the circuit court for Jefferson county: HARRY S. FOX, Circuit Judge. Affirmed.
For the appellant there were briefs by Skinner Thauer, and oral argument by Richard C. Thauer and Wallace Thauer, all of Watertown.
For the respondents there was a brief by Puhr, Peters Holden of Sheboygan, attorneys, and Richard S. Hippenmeyer of Waukesha of counsel, and oral argument by Mr. Hippenmeyer.
This is an action by Marvin Saxby, a minor, to recover damages for personal injuries received by him in an automobile accident, and by his father, James R. Saxby, to recover for medical and hospital expenses and for the partial loss of the services of his son.
Marvin Saxby was a passenger in an automobile driven by the defendant Gilbert C. Klokow when it was involved in a collision with a car driven by the defendant Genevieve E. Cadigen. The accident occurred about 8:50 p. m. on March 14, 1952, on Third street between Dodge and Spring streets in the city of Watertown. There were snowbanks on each side of the street and the balance of the street was covered with a thick coat of ice, except in the wheel tracks. Klokow was driving south on Third street and Mrs. Cadigen was driving north. Cars were parked on each side of the street. The positions of three parked cars are material in the consideration of this case. There was a car parked parallel with the snowbank on the east side of the street a short distance north of the intersection with Spring street. There was a Ford car parked on the opposite side of the street, the front end of which was opposite the front end of the car on the east side of the street. This Ford car was parked at an angle with the rear of the car protruding into the street more than the front end thereof. South of this Ford car was a Dodge car parked on the west side of the street. The distance between the front end of the Ford car and the one parked on the east side of the street was 13 feet and 4 inches.
Each driver, saw the other approaching when each was some distance from the point of collision. Mrs. Cadigen testified that she was driving north in line with the car parked on the east side of the street and attempted to stop her car. When she applied her brakes the car skidded because of the ice, but she testified that she was stopped on her side of the traveled portion of the highway when struck by the car driven by Klokow. He testified that as he drove south he thought the other driver was going to stop but that she turned left and collided with his car. His right front fender struck the left rear fender of the Ford car and he then collided with the Dodge car to the south.
By its answers to a special verdict the jury found that the defendant Cadigen was causally negligent with respect to the management and control of her car and with respect to yielding to Klokow one half of the main-traveled portion of the highway. She was not found negligent with respect to the speed at which she was driving. Klokow was found causally negligent with respect to the management and control of his car, but he was not found negligent with respect to yielding one half of the main-traveled portion of the highway, nor as to speed. The jury compared the negligence of the two drivers and apportioned 60 per cent thereof to the defendant Cadigen and 40 per cent to the defendant Klokow. The jury also found that Klokow did not fail to exercise the skill and judgment he possessed in the management and control of his car.
In cross complaints each of the drivers or their insurance carriers set up causes of action against the other for property damages alleged to have been sustained by their respective automobiles, and each asked for contribution against the other as to the claims of the plaintiffs.
Judgment was entered on May 5, 1953. This judgment provided as follows:
1. A new trial was granted between the defendants on their respective cross complaints for property damage because of an error not material in this appeal.
2. The complaint of the plaintiffs was dismissed as to the defendant Klokow and his insurance carrier.
3. The cross complaint of the defendants Cadigen and her insurance carrier for contribution against Klokow and his insurance carrier was dismissed and costs were awarded to Klokow and his insurer.
4. Plaintiffs were given judgment for their damages as found by the jury, together with costs, against the defendant Farmers Mutual Automobile Insurance Company, the insurer of the Cadigen car.
The last-named company appealed from parts of the judgment as follows:
1. That part thereof dismissing the complaint of the plaintiffs against the defendants Klokow and his Insurance Company.
2. That part thereof awarding costs to Klokow and his Insurance Company against the appellant.
3. That part thereof which adjudges that the cross complaint of the appellant for contribution against Klokow and his insurer be dismissed.
4. That part thereof which adjudges that the plaintiff s recover their damages and costs from the appellant alone.
Question 6 of the special verdict reads as follows: "Did the defendant Gilbert C. Klokow fail to exercise the skill and judgment he possessed in the management and control of his car?" The jury answered this question "No."
The appellant first complains of the following instruction given by the court in connection with that question:
"The mere fact that an accident happened creates no presumption of negligence of anybody. Therefore, the burden of proof to establish negligence, or any other essential fact in this case, rests upon the one who asserts or claims such fact to be true, and who asserts that such question should be answered in the affirmative. . . . The burden of proving that question 6 should be answered in the affirmative is upon the plaintiff and upon the defendant Genevieve E. Cadigen."
It is contended by the appellant that the only allegation that Klokow was or was not using all the skill and ability which he possessed in the operation of his automobile was in the answer of Klokow and his insurer, where it was alleged that he was. The appellant argues, therefore, that this was pleaded as an affirmative defense and it was Klokow's burden to prove his own allegation.
The duty of a host is to use ordinary care not to increase the danger to his guest inherent in the condition of the car or the skill or judgment of the host-driver. Such risks the guest assumes as a matter of law. Haugen v. Wittkopf, 242 Wis. 276, 7 N.W.2d 886; Wheeler v. Rural Mut. Casualty Ins. Co. 261 Wis. 528, 53 N.W.2d 190. Thus, in order for the plaintiff Marvin Saxby to recover from his host-driver it was necessary for him to show that his host failed to exercise the skill and judgment he possessed in the management and control of his car. The host-driver starts with the presumption that he is exercising the skill and judgment which he possesses in the management of his automobile, and this presumption must be overcome by his guest before the guest can recover. The defendant Cadigen would be entitled to contribution only in case there was joint liability on the part of both drivers to the plaintiff. She is bound by the law as to the duty a host owes to his guest. If she could establish that Klokow failed to exercise the skill and judgment he possessed in the management and control of his automobile, then she would have a cause of action for contribution against him in case both she and Klokow were found to be responsible for the guest's injuries. The instruction given is the usual one in cases of this kind, and we can find no error therein.
The appellant next contends that there was no evidence to support the jury's negative answer to question 6. The appellant contends that the evidence shows Klokow was an experienced driver; that he had been driving an automobile for approximately six years, and during the year immediately preceding the accident he had driven back and forth to work almost daily, a round-trip distance of 28 miles in all kinds of weather and with all kinds of road conditions; and that because of his experience he possessed skill and judgment in the operation of an automobile. Since he was found negligent as to management and control, and since he did not avoid the collision, the appellant argues that it necessarily follows that his operation of the car did not measure up to his experience and that consequently he failed to exercise the skill and judgment he possessed. The appellant follows by contending that the jury's finding that Klokow was causally negligent with respect to his management and control of his automobile is inconsistent with its answer to question 6. It argues that an experienced driver using the skill and judgment he possessed as a result of his experience, would not have been negligent in the management and control of his car, especially to the extent of 40 per cent of the total negligence.
There is no merit to the contention. It should be borne in mind that Klokow was nineteen years of age at the time of the accident. The jury could well find from the evidence that he used the skill and judgment he possessed but that he failed to meet the standard of ordinary care applied to all drivers.
The appellant next contends that the trial court erred in refusing to grant its motions to change the answers of the jury as to the speed at which Klokow was driving his car. In the collision the plaintiff Marvin Saxby was thrown forward with such force that his head broke the rear-view mirror and broke the windshield. The appellant argues that such damage could not follow unless Klokow was driving at an excessive rate of speed. This is based partially on the assumption that the Cadigen car was stopped at the time of the collision.
There might be force to the argument were it not for the icy condition of the street. Klokow's car collided not only with the Cadigen car but also with the Dodge parked on the west side of the street. There was a conflict in the testimony as to Klokow's speed and the issue thereon was clearly one for the jury to determine. The trial court refused to change the answer to the speed question, and its determination thereon must be affirmed.
That part of the judgment awarding costs to Klokow and his Insurance Company against the appellant was also appealed from. No mention is made thereof in the appellant's brief, nor did it argue the matter orally before this court. The question was raised before the trial court, and it was there determined that the court had discretion to award the costs under the provisions of sec. 271.035(2), Stats. No abuse of discretion is now claimed by the appellant, and the action of the trial court thereon is affirmed.
Finally the appellant contends that it is entitled to a new trial. This is based upon the same arguments that were made as to the other contentions, and from a review of the record we are satisfied that it is not entitled to a new trial.
By the Court. — The parts of the judgment appealed from are affirmed.