Opinion
March 5, 1953 —
March 31, 1953.
APPEAL from an order of the county court of Portage county: JAMES H. LEVI, Judge. Reversed.
The cause was submitted for the appellant on the brief of Lehner Lehner, Adolph P. Lehner, Howard N. Lehner, and Eugene E. Behling, all of Oconto Falls, and for the respondent on the brief of Anderson Reinardy of Stevens Point.
Demurrer. The material allegations of the complaint are as follows:
"5. That during the early morning of the 15th of July, 1950, the said plaintiff was driving the automobile owned by the defendant, Clarence Groshek, westerly on Highway 10 in the township of Hull, between the village of Park Ridge and the city of Stevens Point.
"6. That the owner of the automobile, the said defendant, Clarence Groshek, was seated in the front seat of his 1950 Nash 4-door as the automobile proceeded through Park Ridge toward the city of Stevens Point with the plaintiff, Anton J. Groshek, driving; that as the car so proceeded, as described above, the defendant-owner, Clarence Groshek, insisted that the plaintiff make an observation into the back seat and to allow defendant to assume the steering responsibility of his automobile; that in spite of some protest by plaintiff the owner placed his hands upon the wheel and plaintiff made an observation into the back seat and as plaintiff was making this observation, the defendant, Clarence Groshek, negligently took his eyes off the highway and also looked into, the back seat which resulted in his inability to see the highway and as a result of such negligence the car was driven from the concrete slab onto the shoulder which was soft and loose sand and this resulted in his inability to maintain the car in an upright position and it turned over causing severe damages to plaintiff.
"7. That the turn over of the automobile and the injuries suffered and sustained by said plaintiff as the result thereof as herein alleged were proximately and directly caused by the negligent driving, handling, and operating of said vehicle by said defendant, Clarence Groshek, and he was negligent in the driving, handling, and operating of his vehicle as aforesaid in the following respects and particulars:
"(a) In that the said Clarence Groshek failed to maintain a proper lookout.
"(b) In that the said Clarence Groshek drove the car off the concrete slab onto a shoulder of soft and loose sand.
"(c) In that the said Clarence Groshek interfered with the operation of the car driven by plaintiff by demanding the right as owner to steer the car just prior to the accident."
A general demurrer was overruled on August 28, 1952. Defendant appeals.
Defendant-appellant, Clarence Groshek, contends, among other things, that it appears from the complaint that plaintiff assumed the risk incident to the conduct of the defendant. We agree. For application of the defense of assumption of risk three elements must be present: (1) A hazard or danger inconsistent with the safety of the plaintiff; (2) knowledge and appreciation of the danger by the plaintiff; and (3) acquiescence or a willingness to proceed in the face of the danger. Knipfer v. Shaw, 210 Wis. 617, 246 N.W. 328, 247 N.W. 320. Though the rule is stated in that case as it is applied to a guest in an automobile, the defense exists independently of the relation between the parties.
(1) The legislature has declared that there is danger incident to interference by a guest with the operator's control of the vehicle. Sec. 85.34 (2), Stats., provides that it shall be "unlawful for any passenger in a vehicle . . . to interfere with the operator's control of the operating mechanism of the vehicle."
(2) No one could reasonably say that plaintiff as a man of ordinary prudence did not know and appreciate the danger incident to defendant's act of assuming control of the steering wheel.
(3) Plaintiff made "some protest" against defendant's effort to assume control of the steering wheel. He argues that his protest indicates an unwillingness to proceed under the circumstances. There would be force to his argument but for his subsequent conduct. At the insistence of defendant and after the protest he made an observation to the rear seat and, of course, took his eyes off the road ahead. By that act he relinquished control of the car; he deliberately chose to expose himself to obvious danger and indicated a willingness to proceed in the face of that danger.
He has, therefore, pleaded all the elements of assumption of risk. Upon the facts alleged and giving the allegations of the complaint the most favorable construction for him which they will reasonably bear, we must hold that the complaint does not state a cause of action.
By the Court. — Order reversed and cause remanded for further proceedings according to law.