Helgestad v. North , 233 Wis. 349 ( 1939 )

I dissent because in my opinion, (1) the question of assumption of risk by the plaintiffs was not properly submitted to the jury, and (2) the refusal of the court to, give the instruction requested by the defendants set out in the opinion of the court constituted prejudicial error.

(1) It is undisputed that for the whole trip a speed of twenty-five to thirty miles per hour was maintained. It is also undisputed that it was snowing during the trip in large flakes and that the visibility according to different witnesses and according to the snowfall at the time was from forty to fifty, two hundred to three hundred, one hundred to one hundred fifty feet "on the average." By the only testimony on the subject, that of the defendant driver, the car could be stopped at the speed maintained in two hundred feet where there was no ice, "but taking the conditions as they were that evening, it would have taken about four hundred or five hundred feet to stop."

Question 1 of the verdict reads as follows:

"At or immediately prior to the accident here in question, did the defendant Charles W. North fail to exercise ordinary care not to increase the danger or to add a new one to the plaintiffs John Helgestad, Bonnibel North, and Muriel North Helgestad, in respect to: (a) The speed at which he was driving under the circumstances then and there existing? (b) Maintaining a proper lookout? (c) Keeping proper management and control of his car?"

It is to be noted that this question limits the inquiry to what occurred at and immediately before the accident.

Question 3 reads as follows:

"Did such failure on the part of the defendant Charles W. North to exercise ordinary care persist long enough to give the plaintiff John Helgestad an opportunity to effectively protest against such manner of driving, in respect to: (a) Lookout? (b) Speed? (c) Management and control?"

Question 3 was submitted as covering assumption of risk. It is to be noted that by its form question 3 limits the inquiry, as did question 1, to what occurred at and immediately before the accident.

Whether the plaintiffs assumed the risk depends wholly on the question of speed. They did not as matter of law under the evidence of this case assume the risk of defendant's failure in respect of lookout or of management of the car at and immediately before the accident. But whether they assumed the risk incident to the speed of the car was for the jury, and the speed involved was the speed of twenty-five to thirty miles per hour under the conditions of limited visibility and the road condition which were manifestly obvious to them. The question submitted limited them to consideration of the speed at and immediately before the accident which was then increased by five or ten miles per hour over that uniformly theretofore maintained. It may well be that the plaintiffs were excusable for not objecting to this increase, because there was not time to render protest effective. But they were not absolved from want of protest at the speed theretofore maintained, if under the existing conditions that speed was dangerous.

It is the law of this state that —

"In the absence of a situation in which the phenomenon camouflage may properly be applied, the rule of the LausonCase [141 Wis. 57, 123 N.W. 629] as to speed is still the law of this state. A person, in the exercise of ordinary care, should operate his automobile in the nighttime at such a rate of speed as will permit him to stop within the range of his lights, and he should be held to that duty in all situations except where an object may not reasonably be distinguished, though within the range of his lights, because of its invisibility to a person in the exercise of ordinary care as to lookout." Mann v. Reliable Transit Co. 217 Wis. 465, 470,259 N.W. 415.

The statute law of the state, sec. 85.40 (4) and (5), establishes a more rigorous rule than that of the Lauson Case in approaching intersections and traversing grades and curves when vision is obstructed by limiting speed to such as will enable stopping in one half the range of vision. Here the rule of the Lauson Case applies to the plaintiffs. They were bound to know, as well as the driver of the car, of the limitation of that rule. The question as to assumption of risk should have been so framed as to bring the plaintiffs subject to this rule during the portion of the trip preceding the time when the defendant increased his speed in turning out to pass the car ahead just before the accident.

(2) In view of the above, the refusal of the court to give the instruction requested by defendant set out in the opinion of the court was erroneous and prejudicial. The refused instruction applied the rule of the Lauson Case to the plaintiffs. That rule was not covered or in any way intimated by the charge of the court. The instruction should have been given or its equivalent inserted in the general charge of the court.

I am authorized to state that Mr. Justice FAIRCHILD concurs in this dissent.