Opinion
February 26, 1947. —
April 8, 1947.
APPEAL from a judgment of the circuit court for Waupaca county: HERMAN J. SEVERSON, Circuit Judge. Affirmed.
For the appellants there was a brief by James R. Joyce and W. T. Kuchenberg, both of Appleton, and oral argument by Mr. Joyce.
For the respondents there was a brief by Zwicky Zwicky of Clintonville, and Benton, Bosser, Becker Parnell of Appleton, and oral argument by Andrew W. Parnell and A. Don Zwicky.
Action commenced August 13, 1945, by Arthur Tietz and the Farmers Mutual Automobile Insurance Company against Mayford Blaier and the Milwaukee Automobile Insurance Company for damages arising from an automobile accident. From judgment for plaintiff Arthur Tietz in the sum of $6,043.33, damages and costs, and for the Farmers Mutual Automobile Insurance Company in the sum of $2,942.36, damages and costs, defendants appeal.
The collision occurred about 11:50 p. m., July 14, 1944, on United States Highway 45, at a point where two farm driveways, one directly opposite the other, join the two-lane concrete highway. Plaintiff Arthur Tietz, with his wife, was driving east on his son's driveway toward the highway, intending to cross the highway and enter his own driveway which was directly opposite his son's. Defendant Mayford Blaier, who had three guests in his car, was proceeding southward on United States Highway 45. He was driving a 1937 Ford in which the lights were controlled by a lever on the steering wheel. From the testimony it appears that Tietz stopped his car a few feet west of the concrete at the junction of his son's driveway and the highway and looked to the north and south. He did not then see the lights of the Blaier car, which was approaching on the highway from the north. He entered the highway and reached a point where the front wheels of his car were over the center line, and he then noticed dim lights to the north which he estimated to be one hundred fifty to two hundred feet away. He continued across the highway to his own driveway on the east. Meanwhile, Blaier, according to his own testimony, had seen the Tietz car moving east in the driveway but paid no further attention to it until he saw it a few feet in front of his car on the highway. Thinking the Tietz car was going to turn right from the driveway onto the concrete, Blaier turned sharply to the left, and his car struck the left front door and fender of the Tietz car when that car had already entered the driveway on the east side of the highway. All occupants of both cars were injured.
Plaintiff Farmers Mutual Automobile Insurance Company, which was the insurer of the Tietz car, made settlements with those who were guests in the Blaier car and with Mrs. Ida Tietz, who was a guest in her husband's car. In this action the Farmers Mutual Automobile Insurance Company seeks contribution of one half of the amounts paid by it, and Arthur Tietz seeks to recover damages for personal injuries, damage to his automobile, and loss of services of his wife, resulting from her injuries.
The jury found by special verdict that defendant Blaier was negligent as to maintaining a proper lookout, as to control of his car, and as to having his car properly lighted; that the collision was a natural result of Blaier's negligence; that plaintiff Arthur Tietz was negligent as to maintaining a proper lookout and as to yielding the right of way; that the collision was a natural result of Tietz's negligence; and that seventy-five per cent of the total negligence was attributable to Blaier and twenty-five per cent to Tietz. The court awarded damages and costs to plaintiffs in the amounts noted above.
Appellants contend that the evidence indicates that Blaier was not negligent as to lookout, control, or the proper lighting of his car, that his conduct was not a proximate cause of the collision, and that the trial court erred in failing to instruct the jury as to the duty a host owes to his guest as distinguished from the duty the host owes to other users of the highway.
The questions submitted to the jury relative to Blaier's negligence were proper. There was testimony indicating that he was negligent as to lookout, as to control, and as to the proper lighting of his car. It was for the jury under the evidence to determine what negligence existed and to what extent it was causal. There was a dispute in the testimony but the resulting jury findings were well supported.
Blaier had observed the Tietz car but did not expect it to cross the highway and did not use due care in his observation. He turned off to the left instead of proceeding in the right lane. The jury concluded that Blaier was negligent in so operating his car and that that negligence was also a proximate cause of the accident. It cannot be said that that conclusion was unjustified because Blaier was not negligent as to speed and thought the Tietz car was going to turn to the right after entering the highway. He failed to see the Tietz car on the highway until it was too close to avoid hitting it.
Blaier and the occupants of his car testified that the lights were bright. But there was other testimony to support a finding to the contrary and to the effect that their failure to extend a beam of light was misleading as to the location of the car. Neither Mr. nor Mrs. Tietz had seen the lights of the Blaier car when their car stopped before crossing and as they entered the highway. When they did observe them, the Tietz car was already well across the highway and the lights appeared dim and a considerable distance away. The jury evidently concluded that the lights were too dim to serve their purpose. Blaier testified that "they shine down so close in front of you, on dim you can't see far." They were switched from bright to dim by moving a lever on the steering wheel, and they had just been switched to dim while passing an approaching car. That was a cause of the failure to give Tietz a fair warning of Blaier's approach. Competent lighting would have facilitated Blaier's lookout, control and management, and he could have so managed his car as to avoid the collision and at the same time assist Tietz in correctly determining the true situation of the oncoming car.
There was no error in the court's failure to instruct the jury on the duty a host owes to his guest. Appellants urge that since the Farmers Mutual Automobile Insurance Company bases its claim for contribution to the amounts paid by it to the guests in the Blaier car on the jury finding that Blaier was driving with defective lights, there could be no recovery because the guest occupants would assume that risk. The basis of the Farmers Mutual Automobile Insurance Company's claim for contribution is not so limited. The negligence complained of was driving without "maintaining a proper lookout," or "control of his car," and without "having his car properly lighted" at the time. The guest does not assume the driver's sudden and temporary failure to maintain a lookout or to promptly return his lights from dim to full unless it is a known practice and constant enough to attract the attention of a reasonable person exercising ordinary care, and there is no evidence to sustain such a claim here. In the language of Poneitowcki v. Harres (1930), 200 Wis. 504, 511, 228 N.W. 126, "there manifestly is no difference between the degree of care he is required to use in these respects for the safety of his guests and for the safety of other persons."
By the Court. — Judgment affirmed.