Walter v. Shemon

66 N.W.2d 160, 267 Wis. 424, 1954 Wisc. LEXIS 303

• Court: Wisconsin Supreme Court
• Decided: October 5, 1954
• Status: Published

Opinions

Steinle, J.

Only one question is presented upon this appeal: Did the court err in refusing to include in the verdict questions inquiring whether the .respective drivers were guilty of negligence with respect to management and control?

We are of the opinion that the request was properly refused so far as the defendant Shemon is concerned. The testimony compels the deduction that the two cars were about 96 feet apart when the Walter automobile abruptly turned into the Shemon lane of travel. Consequently, there was an interval of about three quarters of a second to one second during which time Shemon could act. Certainly, an emergency existed. There was not sufficient time for Shemon to have acted so as to have avoided the collision. Because of the retrograde amnesia there is a presumption that he acted with due care unless, of course, there is credible evidence to overcome the presumption. We find no such evidence in the record.

We believe, however, that the question should have been submitted with respect to Walter. He saw the deer when he was no less than 200 feet from it. He could have stopped his automobile at a distance of 134.7 feet from the deer. He did not apply his brakes forcefully enough to stop his car. He argues that he used his best judgment when he decided that he should not apply his brakes too abruptly, and that he acted as he did so as to avoid going into the ditch and thereby causing injury to himself and his guests.

It is a rule that the host owes to the guest the duty not to increase the danger which the guest assumes when he enters the car and not to create a new danger. It is also the rule that the guest must accept the honest and conscientious exercise by the host of such skill as he has as to control of the automobile. These rules do not, however, relieve the host from exercising what ordinary care requires under the circumstances for the safety of his guest. Pierner v. Mann (1946), 249 Wis. 469, 25 N. W. (2d) 83. We consider that upon the evidence the jury would have a right to believe that Walter was negligent in failing to stop his automobile in time to avoid a collision with the deer; that the collision occurred not because Walter did .not have sufficient experience to enable him to cope with the situation which confronted him, but because he failed to exercise the skill and judgment which he had; and that the jury might infer that a person of Walter’s experience and skill would have brought his car to a stop before reaching the point at which the deer stood. Ebben v. Farmers Mut. Automobile Ins. Co. (1949), 254 Wis. 249, 36 N. W. (2d) 75. On the other hand, the jury might also have found that Walter acted in the exercise of his best judgment and thereby found him not guilty of negligence as to control. It was for the jury, however, to decide the issue and the court erred in refusing to submit that issue to the jury. Garrity v. Davis (1949), 255 Wis. 1, 37 N. W. (2d) 844; Hutzler v. McDonnell (1942), 239 Wis. 568, 2 N. W. (2d) 207; Harter v. Dickman (1932), 209 Wis. 283, 245 N. W. 157.

By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial as to the defendant Walter and his insurance carrier.