Harding v. Jesse , 189 Wis. 652 ( 1926 )

The following opinion was filed March 9, 1926:

Doerfler, J.

The learned circuit judge in his opinion states that the defendant’s negligence may have consisted of too great speed, or too near approach to the Hintz car, or insufficient care to keep a lookout, or all of these things together. The jury found that he was negligent in the operation of his car at or immediately prior to the collision, and while it did not specify the ground of negligence, we are satisfied that he was negligent as to speed as a matter of law. This will more definitely appear from what is said hereafter.

Counsel for the defendant do not dispute their client’s negligence in this respect; on the contrary, they admit the same; and in referring to negligence based on speed we have in mind a speed in excess of thirty miles per hour. We will therefore proceed to consider the contention of the defendant’s counsel that both the plaintiff and his wife voluntarily acquiesced in such speed without remonstrance, and that they were therefore guilty of negligence in participating in such speed, which, under the law of this state, bars recovery. Glick v. Baer, 186 Wis. 268, 201 N. W. 752; Vogel v. Otto, 182 Wis. 1, 195 N. W. 859; Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855; Brubaker v, Iowa County, 174 Wis. 574, 183 N. W. 690; Howe v. Corey, 172 Wis. 537, 179 N. W. 791.

That the defendant had not acquired adequate skill in the management of his Essex car, and that he was careless in his operation of the same, even on the trip to the lake, is shown by the testimony of both the plaintiff and his wife. They discussed this subject both at Tomahawk and at the lake. They were aware that the car was not in perfect order, in that the brakes were loose and did not operate properly for some considerable distance before the accident. The entire stretch from the lake to the beginning of the concrete was covered at a speed which averaged about twenty-five miles per hour. While' it is possible to operate a car a distance of 110 miles at the uniform rate of twenty-five miles per hour, in view of the varying conditions of the road it is highly improbable that such uniform rate was maintained, and it is a reasonable inference, to say the least,- that during numerous periods while traveling this distance the car was run at an illegal and excessive rate of speed, — one exceeding thirty miles per hour. It is undisputed that the parties were in a hurry and were anxious to arrive at Wausau in time for the noonday meal. It is admitted that when they' reached, the concrete, Mrs. Jesse, with the knowledge of both Mr. and Mrs. Harding, requested that the defendant drive faster. Before them lay this stretch of five miles of concrete road in fine condition. That they did drive faster and that they did exceed the speed limit, no one, under the circumstances, can doubt. In fact, the plaintiff upon his adverse examination admitted that over a stretch of two miles, from the beginning of the concrete, the car was run at a rate of between forty and forty-five miles per hour. Upon the trial he modified this admission by placing the speed over this stretch at thirty-five to forty miles per hour. It is true that both Mr. and-Mrs. Harding testified that on a number of occasions they overtook the Hintz car, and that the speed of the Jesse car was several times reduced. However, this testimony is of little probative force in view of the frank admission of the defendant that the entire distance of two miles, from the beginning of the concrete, was traveled at a rate of between thirty-five and forty-five miles per hour. Moreover, the parties were anxious to get home. They had a clear, wide road, and in view of their anxiety it is highly improbable, if not incredible, that they should slacken their speed for the Chevrolet car and not pass it, especially w'here the evidence shows that there was no other obstruction in the road.

All of the witnesses agree that the defendant’s car was operated at a very rapid fate of speed. Mrs. Hintz testified that when she looked to the rear she could clearly see a distance of about three blocks, but that she discovered no car; that between the time when her husband slackened the speed of the car and the time of the accident but a comparatively few seconds elapsed. Mrs.'Wenzel also testified that as the Hintz car approached her, and when she looked towards the rear, she had a clear view for a distance of about a quarter of a mile and that no car was seen approaching, and that during the period that the Hintz car passed her and ran a distance of twenty feet beyond her, the defendant’s car appeared upon the scene, and almost contemporaneously with such appearance the collision took place. While both Mrs. Hintz and Mrs. Wenzel might have overestimated the distance that they could or did see to the rear, their testimony is of great probative force, and leaves but one logical conclusion, namely, that the defendant’s car was approaching at a dangerous and illegal rate of speed, and by such illegal rate of speed we have reference to a speed m excess of thirty miles per hour.

Notwithstanding the knowledge of the plaintiff and his wife of the inexperience and lack of skill of the defendant as a driver of the Essex car, and the violation of the speed limit on numerous occasions over a distance of 110 miles, and the knowledge which they had of the defective brakes, not a single protest or remonstrance was uttered until the Essex car had arrived at a point where a collision was imminent and unavoidable. That Mrs. Harding was fully aware of and appreciated the excessive rate of speed of the defendant’s car is manifested by her frank admission that if her husband had been the driver she would have cautioned him.

We fully appreciate the delicate-situation of a gratuitous guest when it comes to protesting or remonstrating to the host with respect to illegal speed or with respect to any other negligence in the operation of a car. However, the law in this state is now well established, as will appear from the foregoing decisions, that a gratuitous guest cannot idly sit by, observe clear violations of law, in fact acquiesce in them, and then, in the event of an accident, hold his host liable in damages. The privilege of a gratuitous ride is accompanied by a corresponding obligation, and such obligation must be met if liability should ensue.

We also are aware of the language used in the Glick Case, 186 Wis. 268, 201 N. W. 752, where it is stated that ordinarily cases of this kind present an issue for the jury. This rule, however, does not apply in a case like this, where repeated violations as to speed are acquiesced in and where no protest or remonstrance is uttered.

We therefore conclude that the learned circuit judge was in error when he submitted an issue as to speed to the jury and when he approved the verdict of the jury. This accident was primarily due .to the operation of the Essex car at a rate of speed in excess of thirty miles per hour. This excessive speed prevented a timely control of the car, and clearly was the reason why, in order to avoid a collision with the Hintz car, the Essex car was made to suddenly dart out from behind the Hintz car into the path of the oncoming Cadillac. Every other charge of negligence was intimately and inseparably connected with excessive speed.

By the Court. — The judgment of the lower court is reversed, and the cause is remanded with directions to dismiss plaintiff’s complaint.

A motion for a rehearing was denied, with $25 costs, on May 11, 1926.