Opinion
October 9, 1958 —
November 5, 1958.
APPEAL from judgments of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellants there was a brief by Nikolay, Jensen Scott of Abbotsford, and oral argument by John J. Nikolay and Corliss V. Jensen.
For the respondent there was a brief by Genrich, Terwilliger, Wakeen, Piehler Conway, attorneys, and Paul D. Hilton of counsel, all of Wausau, and oral argument by Herbert L. Terwilliger.
These guest-host actions to recover for personal injuries sustained in an automobile accident were started separately and consolidated for the purpose of trial. The plaintiffs Richard Ven Rooy, age seventeen, and David Koleske, age sixteen, with Peter Ven Rooy and Diane Fitzel, age fifteen, were passengers in a car driven by Donald Ven Rooy, age twenty-one, on the night of the accident. The defendant was the insurance carrier for Donald. On September 8, 1956, all of the occupants of the automobile attended a dance at the Riverview ballroom near Stratford, Wisconsin. The occupants of the car other than Donald went to the ballroom while Donald went to the tavern portion of the building where he proceeded to drink two six-or-seven-ounce glasses of beer. During the evening Donald, David, Richard, and a Raymond Kaiser, age twelve, drove to another tavern where Donald drank a bottle of beer and Richard purchased a six-pack of beer. Richard drank two cans of this beer, Raymond two, and David one. The other was saved for Diane. Upon return to the Riverview ballroom Donald returned to the bar. Between that time and the time they left the dance at about 12:45 a. m. on September 9th Donald had seven or eight more glasses of beer.
On adverse examination Richard testified that he, Diane, and David went into the tavern after 12 o'clock to get Donald to come home and they stood there and talked while Donald finished his beer. Diane testified that when Donald came into the car at the Riverview ballroom he told the passengers how many beers he had had to drink. Richard admitted that his brother Donald was a habitually fast driver and that he usually drove about 10 miles or a little better over the speed limit.
Upon leaving the ballroom the parties drove north about eight miles on Highway 97 at a speed from 45 to 50 miles an hour and then turned left on County Trunk N. It was about six miles from where they turned on "N" to where the accident happened. During this time the car was being driven at a speed of 60 to 65 miles per hour. No one in the car made any protest as to its speed or its manner of operation. The parties were all singing as they went along. Just before the accident the guests were singing one song, "goofing it up" as one witness put it, and Donald was singing a different song. Donald testified that as they passed a cheese factory at 65 miles an hour half a mile east of where the accident happened he "blacked out" and slowed down his speed. After blacking out the next thing he remembered was when the car was in the ditch. There is no testimony of what happened to Donald for the one-half mile he drove while he was "blacked out." There is testimony that just before the accident a car approached with bright lights which blinded David and Richard. Both the plaintiffs testified that they felt the car slide off the road when this oncoming car was about 50 feet away. At this point in the road there was a two or two and one-quarter-inch differential between the height of the black-top and the height of the shoulder. There was a foot of sloping shoulder and then a steep ditch, which was approximately two to two and one-half feet below the surface of the road. After the car was in the ditch, Donald came out of the blackout and turned to the left in an effort to bring the car back on the road. The car went 396 feet along the ditch, excepting for about four feet on the shoulder of the road, before hitting a culvert.
After the accident Donald stated to the police officers that he did not know how many beers he had drunk, but that he had too many. Donald later pleaded guilty to operating his automobile at the time of the accident under the influence of intoxicating liquor and also guilty to negligent homicide.
The case was tried to the court and a jury. In the special verdict the jury found in answer to question 1 that Donald was operating the car under the influence of intoxicating beverages but found in answer to questions 2 and 3 that the plaintiffs did not know that Donald was under the influence of intoxicating beverages when they entered the automobile. In questions 4 and 6 the jury found that just prior to and at the time and place of the accident Donald was not negligent as to speed but was negligent in such a manner in respect to lookout and to management and control as to increase the risk to the plaintiffs beyond that which they ought reasonably to have anticipated upon entering the automobile, and in questions 5 and 7 that such negligence was the cause of the accident. The jury answered questions 8 and 9 that the plaintiffs assumed the risk incident to Donald's driving in respect to lookout and in respect to management and control.
Defendant requested that a question as to each plaintiff be submitted in the special verdict to the effect whether he knew, or should have known in the exercise of ordinary care, that Donald was under the influence of intoxicating beverages. The trial court submitted questions 2 and 3 only as to knowledge. After the verdict the plaintiffs moved to change the answers to questions 8 and 9 relating to the assumption of risk, to set aside the verdict and for a new trial because the court erred in submitting the assumption-of-risk questions as to lookout and as to management and control, because the verdict was contrary to law and the evidence and was an inconsistent verdict, and for other reasons. The defendant moved for judgment on the verdict dismissing the complaints and in the alternative to change the answers to questions 2 and 3 and for other relief. The plaintiffs' motions after judgment were denied and the motions of the defendant for judgments on the verdict dismissing the complaints were granted. Judgments were accordingly entered on January 29, 1958. The plaintiffs appeal from these judgments.
The main issue raised by this appeal is the question of the assumption of risk by the plaintiffs. As a general rule before a guest can be held to have assumed the risk of his host's negligence the evidence must show three factors, to wit: (1) The hazard or danger inconsistent with the safety of the guest; (2) knowledge and appreciation of the hazard by the guest, and (3) acquiescence or a willingness to proceed in the face of danger. Prunty v. Vandenberg (1950), 257 Wis. 469, 44, N.W.2d 246. Instructions to the jury in accordance with this rule were given by the trial court in connection with the questions on the assumption of risk. We must assume that the jury in answering these questions did not disregard these instructions.
Negligent lookout as a general rule is ordinarily of such a momentary character that a guest cannot be found to have assumed it, but two exceptions are noted in Bronk v. Mijal (1957), 275 Wis. 194, 81 N.W.2d 481, namely, (1) where a guest acquiesces in a host-driver operating his car for a considerable distance with a windshield clouded with frost or moisture, the guest may be found to have assumed the risk of the host's negligent lookout, and (2) where there is evidence that the host to the knowledge of the guest has consumed intoxicating liquor in a quantity which might appreciably interfere with the exercise by the host of ordinary care in the operation of his vehicle, a jury is permitted to find assumption of risk as to lookout. We see no reason under proper circumstances why the second exception should not apply to management and control as well as lookout.
The trial court in its instructions on the first question to which the jury answered Donald, the host, was operating his automobile under the influence of intoxicating beverages, stated the jury should answer the question "No" if Donald's drinking prior to the accident did not substantially affect and impair his ability to operate and control his automobile at the time of the accident, and, if his drinking did substantially affect and impair his ability to properly operate and control his automobile at the time of the accident, it should answer the question "Yes."
In its instructions on questions 2 and 3 the court stated the term "under the influence of intoxicating beverages" had the same meaning as in the first question. The jury could well have believed that the drinking of Donald appreciably affected his ability to properly operate and control his automobile at the time of the accident but the plaintiffs did not know at the time they entered the car that such was the effect of the host's drinking. There is evidence that both of the plaintiffs knew that Donald had been drinking beer prior to entering the car and that they themselves had been drinking beer. The fact the jury found that the plaintiffs did not know that Donald was under the influence of intoxicating beverages at the time they entered the car is not inconsistent with the finding that the plaintiffs some time thereafter knew, or should have known, that the driver's consumption of intoxicating liquor might appreciably interfere with the exercise by him of ordinary care. The jury should consider the plaintiffs' condition just prior to and at the time of the accident in connection with the question on assumption of risk. This is not inconsistent with Erickson v. Pugh (1954), 268 Wis. 53, 66 N.W.2d 691.
Just prior to and at the time of the accident the plaintiffs also knew the car was being driven at an excessive rate of speed although the jury found that the driver was not negligent in this respect. There was credible evidence from which the jury could reasonably infer that the driver was not giving his undivided attention to the management and control of the automobile. For some time prior to the accident the plaintiffs and the other passengers were singing "Sparrow in the Treetop" and as one testified, they were "goofing it up" because they did not remember all the words, or "messing it up" as another witness testified. The plaintiffs were aware that the driver was singing a different song, namely, "Bury Me Not on the Lone Prairie." The jury could reasonably conclude, considering Donald was under the influence of intoxicating beverages at the time, that the plaintiffs knew, or should have known, Donald was negligent in respect to lookout and management and control. The conduct of the plaintiffs in this situation was itself an acquiescence or willingness to proceed in the face of such danger. No one objected to the conduct of the driver.
Such a situation is distinguishable from mere conversation in a vehicle, which this court has held would not justify a legitimate inference of lack of lookout. Behr v. Larson (1957), 275 Wis. 620, 83 N.W.2d 157. We conclude on the record in this case that the jury was justified in answering the questions on the assumption of risk the way they did.
The appellants further claim the verdict is inconsistent under the rule of Frey v. Dick (1956), 273 Wis. 1, 76 N.W.2d 716, 77 N.W.2d 609 In Frey v. Dick the jury found that the host was not under the influence of intoxicating liquor while in this case the jury found the host was. We have already pointed out there was no inconsistency in finding the plaintiffs did not know at the time they entered the car that the driver was under the influence of liquor and the finding that the plaintiffs knew, or should have known, at a later time and under different circumstances that the driver was under the influence of intoxicating liquor. The condition of the driver might not have manifested itself at the earlier period of time but did at the later period either because of the changed external circumstances or because of the increase in the effect of the consumption of liquor during the lapse of time.
Under the rule of Topel v. Correz (1956), 273 Wis. 611, 79 N.W.2d 253, it was proper in the instructions relating to the questions of risk just prior to and at the time and place of the accident to include the language "a guest who knows, or in the exercise of ordinary care should have known, that the conduct of his host-driver, is in any respect dangerous, is required under the law to make known his objection to such conduct by protesting."
Because we believe there is credible evidence and legitimate inferences which could be drawn by the jury which sustain the findings of the assumption of risk, it is not necessary to consider the alternative questions raised by the respondent.
By the Court. — Judgments affirmed.
MARTIN, C.J., and BROWN, J., took no part.