Helgestad v. North

Rosenberry, C. J. On this appeal the defendants contend, (I) that the plaintiffs assumed the risk as a matter of law and are precluded from recovering; (II) that the question of plaintiffs’ contributory negligence should have been submitted to the jury; (III) that assumption of risk was not properly submitted or the jury properly instructed in regard thereto. I.' The specific claim of the defendants as to assumption of risk as a matter of law may be stated as follows : That under the weather and road conditions then existing the defendant North was driving at a speed greater than that which would have permitted him to stop within the range of his vision, that this was obvious to plaintiffs and they therefore assumed the risk as a matter of law. The defendants rely upon the cases of Walker v. Kroger Grocery & Baking Co. (1934) 214 Wis. 519, 252 N. W. 721; Young v. Nunn, Bush & *353 Weldon Shoe Co. (1933) 212 Wis. 403, 249 N. W. 278; Knipfer v. Shaw (1933), 210 Wis. 617, 246 N. W. 328, 247 N. W. 320; Brockhaus v. Neuman (1930), 201 Wis. 57, 228 N. W. 477, and other cases. In each of these cases it may be broadly stated that the driver of the car had maintained a speed for a considerable time prior to the happening of the accident which prevented him from taking those precautionary steps to- prevent an accident under the conditions then and there existing. In the Brockhaus v. Neuman Case, supra, the parties making a trip from Appleton to Waupun, a distance of fifty-two miles, were on their return and the speed had been maintained throughout the trip. In Knipfer v. Shaw, supra, the parties had driven for a long time in a dense fog with visibility limited to thirty feet. In Walker v. Kroger Grocery & Baking Co., supra, Walker was driving in a fog which permitted a vision of forty to fifty feet. He had driven for some time at that speed. In Young v. Nunn, Bush & Weldon Shoe Co., supra, the parties had traveled from Chicago to Milwaukee during which the driver-had maintained a high rate of speed. With respect to- speed and the plainly manifested intent of the driver to pass the truck upon its right, the court was of the view that there was no escape from the conclusion that the course of conduct on the part of Petrus was in accordance with his usual manner of driving. In this case, however, it appears from the finding of the jury that the plaintiff had not maintained a speed or driven under such conditions as obtained at the moment of the accident for a sufficient length of time to enable the guests to protest. Upon the evidence offered and received in the case, the jury might have well found in accordance with the contentions of the defendants, but upon the record this court cannot say that there is no credible evidence to- sustain the jury’s verdict. Nor can this court say that speed was the *354 sole cause of the accident. Maintaining a speed of twenty-five to ■ thirty miles from the beginning of the trip to the time of the accident, defendant had turned many .curves and corners and nothing out of the ordinary had occurred. This accident may well be attributed to the fact that the plaintiff increased his speed to pass a car when it was too close to the corner; that in attempting to1 slow down he lost control of the car and as a result the accident occurred; and that loss of control was due in part to lack of lookout and in part to lack of proper management and control of his car as the jury found. There is considerable conflict in the evidence as to visibility. At times there was a light fall of snow and at other times a heavier fall of sticky snow. Under all the facts, only a part of which have been stated, it is considered that the question was for the jury. II. We find no basis upon which it can be claimed that the plaintiffs were guilty of contributory negligence as a matter of láw. III. In each case the court submitted to the jury the following question: “Did such failure on the part of the defendant Charles W. North to exercise ordinary care persist long enough to give th^e plaintiff an opportunity to effectively protest against such manner of driving, in respect to: (a) Lookout? (b) Speed? (c) Management and control?” To each of these the jury answered “No.” The court properly instructed the jury as to the duty of guests to' keep a proper lookout and with respect to assumption of risk, as follows : “It is the duty of the guest to' timely protest to' the driver if such driver is driving in such a manner as to increase the danger to or add a new one to the risks assumed by the *355 guest upon entering the car of the driver, and if the guest fails to protest he will be held to have acquiesced in such course of driving, if it has persisted long enough to give him an opportunity to protest; however, if the act of the driver increasing the danger or adding a new one is done so quickly or in such a manner that the guest has not sufficient time to make an efficient protest, he is then not required to- make a protest which would be entirely useless, and under such circumstances the guest cannot be held to have acquiesced in or consented tO' such faulty driving.” While the court did not use the term “assume the risk” this instruction clearly advises the jury as to- the duty of a guest to protest in the presence of an increased risk or a new danger and the legal effect of his failure to- protest. To acquiesce or consent to a course of negligent conduct is to assume the risks incident to it. It is considered that the trial court correctly submitted assumption of risk under the facts of this case. If the accident was in part due to speed, it was the increased speed at which the defendant drove in order to pass the car. The defendants requested the following instruction and the refusal of the court to give it is assigned as error: “If you find that between Edgerton and the point of the accident, defendant, Charles North, was driving at such a rate of speed under the circumstances that because of the ice and snow and visibility that night, he could not stop within the range of his vision, and if you find that plaintiffs, John Helgestad, Bonnibel North, and Muriel North knew of this danger and appreciated it, or in the exercise of reasonable care should have known of such danger, but nevertheless acquiesced in, and were willing to proceed in the face of such danger, then you must find that each one of the plaintiffs assumed the risk. While the trial court refused to give this instruction in the form requested the substance of it is given in the instruction already quoted. It is considered that the court submitted the question of assumption of risk and properly instructed the jury in respect thereto-, and the court was not in error-in *356 failing to give the instruction m the manner and form requested. By the Court. — The judgment in each case is affirmed.