Brown v. Haertel , 210 Wis. 354 ( 1933 )

The following opinion was filed October 11, 1932:

Owen, J.

Myrtle Brown and L. PI. Brown were passengers in the automobile driven by Marion Brown at the time of the accident dealt with in the companion case of Marion Brown v. Henry Haertel et al., decided herewith (ante, p. 345, 244 N. W. 630). The actions were brought by them to recover damages for personal injuries which they sustained in that accident. Upon motion of the defendants, John Brown and Marion Brown were impleaded as defendants, and a cross-complaint for contribution was made against them by the defendants. The plaintiffs were exonerated of contributory negligence and they had judgments against the defendants for the amount of their damages. The judgments made no disposition of the issues raised by the cross-complaint for contribution. From these judgments the defendants Henry Haertel and Plenry Plaertel Service, Inc., appeal. They contend that the plaintiffs, Myrtle Brown and L. H. Brown, were guilty of contributory negligence in failing to keep a lookout, which contributory negligence either defeats their right to recover or minimizes thp negligence of the defendants.

While we held Marion Brown guilty of contributory negligence as a matter of law in the companion case, it is to be remembered that Myrtle Brown and L. H. Brown were simply passengers in the automobile. In the recent case of Tomberlin v. Chicago, St. P., M. & O. R. Co. 208 Wis. 30, 238 N. W. 287, 242 N. W. 677, 243 N. W. 208, the difference between the character of the duty devolving upon the driver and the gratuitous passenger in an automobile to maintain a lookout and to discover approaching danger was emphasized, and it was there held that the duty devolving upon the passenger in such respect was not of that imperative nature the failure to perform which convicted him of negligence as a matter of law, and it was there held that while it was the duty of a passenger in an automobile to exercise ordinary care for his or her protection, the degree of care required and whether it was exercised were jury questions. There is no consideration upon which the verdict of the jury in these cases exonerating the plaintiffs from contributory negligence can be disturbed.

The judgments in these cases do not appear to have disposed of the issues raised upon the cross-complaint. The judgments are in favor of. the plaintiffs and against the defendants. The appeals are simply from those judgments. While the fact that negligence on the part of Marion Brown and John Brown proximately contributed to the accident would seem to justify a recovery of contribution in some amount by the defendants from them, no question with reference to that branch of the case seems to be presented.

By the Court. — Judgments affirmed.