Walter v. Shemon
Walter v. Shemon
Opinion of the Court
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
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial as to the defendant Walter and his insurance carrier.
Dissenting Opinion
(dissenting). In my opinion the question presented as to Walter was not whether he was guilty of negligent management and control, but whether there was evidence from which the jury could infer that he increased the danger assumed by the plaintiffs or created a new danger in that respect.
Walter was the plaintiffs’ host. In that relationship he owed them no greater duty than the conscientious exercise
The evidence clearly shows that Walter conscientiously exercised what skill and judgment he had in controlling his car. It also shows that he had very little time in which, to consider what course of action to follow and having adopted the course that he did, there was no time for a second guess. Whether what he did was the right thing to do to avoid an accident depended upon matters outside his control, to wit, the possible action of the deer. To allow the jury to pass on whether the exercise of his judgment constituted negligence because he did not stop would be to permit the jury to reason backwards and substitute its judgment for his. This would be tantamount to requiring of a driver the same duty to a guest as that which he owes to other users of the highway.
In School v. Milwaukee Automobile Ins. Co. (1940), 234 Wis. 332, 335, 291 N. W. 311, this court, speaking through Mr. Justice Wickhem, held:
“Plaintiffs were guests of Anderson and as a matter of law assumed the risk as to his skill and judgment. We see no possibility of holding that Anderson did not conscientiously exercise such skill and judgment as he had. This being true, there was no violation of his duties as a host even if it were to be held that his judgment was so faulty as not to measure up to the standard of ordinary care.” (Emphasis supplied.)
“The guest clearly assumes the risk of negligent failures on the part of his host in the held of skill and judgment and may not predicate his recovery upon them.”
Reference
- Full Case Name
- Walter and Another, Appellants, vs. Shemon and Others, Respondents
- Cited By
- 6 cases
- Status
- Published