Opinion
April 4, 1960 —
May 3, 1960.
APPEAL from a judgment of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the brief of John E. Esler of Kaukauna.
For the respondent there was a brief by Hoeffel Coughlin of Appleton, and oral argument by Harry P. Hoeffel.
Action by the plaintiff Olive Schinke to recover damages for personal injuries sustained in an accident while riding as a passenger in an automobile owned and operated by her husband. The sole defendant is the insurer of such automobile.
The accident occurred on the afternoon of December 10, 1957. Mr. and Mrs. Schinke resided in the village of Little Chute in Outagamie county. Both were employed in a tavern and restaurant in such village. On the morning of the accident the parties left Little Chute in the husband's automobile for Menominee, Michigan, in order to purchase several cases of oleomargarine. Mr. Schinke did not drive at an excessive speed on the trip going to Menominee. After purchasing the oleomargarine, the Schinkes then drove to Peshtigo and called at the home of some friends where they had lunch. They left Peshtigo on the return trip home at approximately 12:45 p. m. The distance from Peshtigo to Little Chute is about 75 miles.
After leaving Peshtigo, Mr. Schinke commenced to drive at an excessive speed. Mrs. Schinke protested and he slowed down for a short distance and then speeded up. Mrs. Schinke testified that she observed from the speedometer that he was driving at a speed of 80 to 85 miles per hour. She further testified that she voiced protests to her husband about his driving at an excessive speed at least four times. His excuse for driving so fast was that he wished to get home in time to have a two-hour nap before going to work at five o'clock. In passing through Green Bay they stopped at a fruit market and purchased some apples.
After leaving Green Bay, he resumed driving at an excessive speed. The route of travel was south on Highway 41. About two miles north of the north boundary line of Outagamie county, a car proceeding in a northerly direction attempted to pass a truck also proceeding in the same direction. In doing so the passing car invaded the lane of travel of the Schinke car. The highway at such point has a two-lane concrete pavement with wide, gravel shoulders. Mr. Schinke drove onto the shoulder to his right and, after the car which had invaded his traffic lane had passed, he resumed driving on the concrete. The plaintiff estimated the Schinke car had traveled about 700 feet after passing the other car when the right front tire blew out with a loud explosion. This caused the car to veer off onto the shoulder. It struck and went over a farm mailbox, bounced over an elevated farm driveway built over a pipe culvert, and landed on the other side on all four wheels in the ditch. The jolting resulting from the accident caused the plaintiff's injuries.
After the accident, Mr. Schinke told his wife that at the time of the blowout he was driving at a speed of 93 miles per hour. The tire which sustained the blowout was a rayon-cord tire which had been driven approximately 20,000 miles. The plaintiff produced a tire expert who testified that in his opinion the blowout was caused by the heat generated by the high speed at which Mr. Schinke had driven, together with the act of driving on the gravel shoulder at the time of passing the other vehicle.
The jury returned a special verdict wherein it was found that just before the accident Mr. Schinke was causally negligent with respect to speed and that Mrs. Schinke had assumed the risk of such negligent speed judgment was rendered on the verdict under date of May 7, 1959, dismissing the complaint upon the merits. From such judgment the plaintiff has appealed.
The sole issue upon this appeal is whether there is credible evidence to sustain the finding of the jury that the plaintiff guest assumed the risk of her husband's negligent speed.
In order that a guest can be held to have assumed the risk of the host's negligence the evidence must establish these three factors: (1) A 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. Knipfer v. Shaw (1933), 210 Wis. 617, 621, 246 N.W. 328, 247 N.W. 320, and Ven Rooy v. Farmers Mut. Automobile Ins. Co. (1958), 5 Wis.2d 374, 379, 92 N.W.2d 771.
The principal argument advanced in behalf of the plaintiff is that there was lacking any proof of knowledge and appreciation on her part of the particular hazard which caused the accident. Such hazard was the danger of blowout of the tire as a result of the husband's car being driven at an excessive speed. This excessive speed caused the tire to heat, and, because of its construction and condition, it was unable to withstand the pressure generated by such heat. It is pointed out that the plaintiff was a nondriver and was not aware of the quality and condition of the tire and had no appreciation of the hazard of blowout arising from driving the car at an excessive speed.
This argument is answered in the learned trial judge's memorandum opinion upon the motions after verdict as follows:
"It is not necessary for a party, to assume a risk, to know or anticipate the specific hazard that eventually operates as the substantial factor in producing the accident. It is sufficient that hazards were presented by defendant's negligence that were, or should have been, known to plaintiff, and that she acquiesced therein." (Emphasis supplied.)
The plaintiff must be assumed to have known that operating an automobile at a speed of from 15 to 28 miles per hour above the maximum speed limit of 65 miles per hour was likely to result in an accident. The fact, that the particular accident which occurred was not one which she contemplated might result from such excessive speed, does not relieve her from assumption of risk.
The second contention advanced in plaintiff's behalf is that, because she did voice a protest at least four times against her husband's driving so fast, there was no acquiescence on her part. However, these protests occurred between Peshtigo and Green Bay and she had an opportunity at Green Bay to leave the car and refuse to ride farther in it. She also could have demanded that her husband stop the car and let her out. Whether she should have done either of these things presented an issue of fact for the jury. Krause v. Hall (1928), 195 Wis. 565, 571, 217 N.W. 290; Richie v. Chears (Ky. 1956), 288 S.W.2d 660; Reynolds v. Sullivan (1953), 330 Mass. 549, 116 N.E.2d 128; Stewart v. Farley (1954), 364 Mo. 921, 269 S.W.2d 896; Reich v. Evans (1958), 7 App. Div. 2d 765, 180 N.Y. Supp. 2d 159.
The opinion in Krause v. Hall, supra, considered the action of the plaintiff guest, in remaining in the car after having futilely protested against the host's negligent speed, as constituting contributory negligence. However, in the later case of Biersach v. Wechselberg (1931), 206 Wis. 113, 118, 119, 238 N.W. 905, Mr. Chief justice ROSENBERRY declared that it was more properly assumption of risk than contributory negligence.
The jury, in finding that the plaintiff had assumed the risk of the negligent speed, may have concluded that, in merely protesting and doing nothing more, the plaintiff had acquiesced in such negligent speed. The jury also may have inferred that plaintiff's protests were not as vigorously made as they might have been. A basis for this inference is provided by the following extract from her testimony:
" Q. You didn't feel there was much hope of him cutting down, inasmuch as he wanted his nap? A. No, I didn't.
" Q. You knew he was going to keep on doing that? A. Uh-huh."
We deem that there was ample credible evidence to sustain the jury's finding of assumption of risk. Therefore, the judgment must be affirmed.
By the Court. — Judgment affirmed.