* Motion for rehearing denied, without costs, on April 13, 1943. *Page 108 Leave was granted upon the petition and application of Floyd L. Litzen to bring, upon his relation, an original action in this court for a writ of mandamus directing the respondent, C. B. Dillett, county judge of Shawano county, to vacate a judgment entered May 25, 1940, in an action in which Litzen is plaintiff and Alfred Eggert et al., are defendants, in so far as the judgment dismisses Litzen's complaint against Eggert; and, in lieu thereof, to enter judgment against Eggert in conformity with the mandate of this court, entered April 9, 1940, on an appeal in said action. Thereupon, the matter was submitted to this court upon the allegations in Litzen's petition and in the objections and return filed on behalf of respondent. This is the third time the jurisdiction of this court is invoked in relation to proceedings in the action brought by Floyd L. Litzen against Alfred Eggert and others to recover damages sustained by Litzen as the result of alleged negligence of Eggert and others. On an appeal from an order granting a new trial in the action, after a trial on the merits and the return of a special verdict, that order was reversed in four cases, which had been consolidated for trial, by the following mandate, —
"The order appealed from in each case is reversed, and cause remanded with directions to the trial court to enter judgment upon the verdict as rendered." Anderson v. Eggert,234 Wis. 348, 374, 291 N.W. 365. *Page 109
Upon the return of the record to the trial court, Litzen moved for judgment upon the verdict against Eggert and his insurer for the recovery of Litzen's damages. The court denied Litzen's motion and entered judgment dismissing his complaint upon the merits. Litzen appealed from the judgment; but that appeal was dismissed on Eggert's contention that the appeal was improper because Litzen's remedy, if any, was by mandamus, and the mandate upon the first appeal had become the law of the case so that the verdict was no longer open to question or attack. Litzen v. Eggert, 238 Wis. 121,123, 297 N.W. 382. In sustaining that contention we said, —
"Upon the entry of judgment subsequent to the mandate the only question which can be reviewed by this court is whether the judgment entered is in accordance with the mandate. If the trial court did not follow the mandate in entering the judgment, the remedy of the party aggrieved is not by an appeal, — but solely by mandamus."
Now, in this action for a writ of mandamus to compel the trial court to enter judgment on the verdict for Litzen's recovery of damages from Eggert, Litzen contends that his right to such recovery is not barred by the finding in the special verdict that Litzen, in riding as Eggert's guest in his automobile, had assumed the risk incidental to Eggert's causal negligence in failing to keep a proper lookout while operating the car at and immediately prior to the collision, as the result of which Litzen sustained the damage. In thus contending Litzen claims that the doctrine of assumption of risk is not applicable to an automobile guest in relation to the negligence of his host in failing to keep a proper lookout; and that the only defense, arising out of conduct of the guest in respect to the host's negligence in failing to keep a proper lookout, is contributory negligence. The contention and the claim upon which it is based cannot be sustained in this case. *Page 110
At the outset Litzen is confronted with not only the finding the verdict that he did assume the risk of Eggert's negligence in respect to lookout; but also the mandate on the first appeal directing the entry of judgment upon the verdict as rendered, because of which "there was no longer open for consideration by the trial court any other question presented by the record which could have been litigated upon that appeal." (Litzenv. Eggert, supra.) Consequently, the finding as to assumption of risk is no longer open to question or attack; but must be treated as an absolute verity and assumed to have been made upon sufficient evidence and in response to instructions accurately stating the law on assumption of risk. Every presumption must be indulged in favor of its validity, and the court cannot go back to the original record to determine whether the finding was justified under the circumstances of this case. On the contrary, if under any conceivable set of facts or hypothesis, a guest can be held to have assumed the risk of negligent lookout on the part of his host, it must be conclusively presumed at this stage of the litigation that such facts were present herein. And that there can be facts and circumstances because of which a guest can rightly be held to have assumed the risk of such negligence was recognized by this court when we said in Elkey v. Elkey, 234 Wis. 149, 154a, 290 N.W. 627, —
"If the plaintiff at the time knew that her husband was not maintaining a lookout and had time to tell him to tend to his business in time to prevent the diversion of the car from its line of travel, she would then have assumed the risk incident to his failure of lookout."
To the same effect is the statement in Hensel v. HenselYellow Cab Co. 209 Wis. 489, 495, 245 N.W. 159, that, —
"There still remains the finding that he was negligent with respect to lookout, as to which he owed the plaintiff the same duty as he owed others, in the absence of evidence that he was *Page 111 habitually negligent as to lookout to the knowledge of the plaintiff and in the absence of any conduct on her part inducing or acquiescing in his conduct as to lookout at the immediate time." See also Walker v. Kroger Grocery Baking Co.214 Wis. 519, 530, 252 N.W. 721.
It follows that, in so far as the jury's finding on the issue as to Litzen's assumption of the risk of Eggert's causal negligence in respect to lookout is involved, it can and must be treated as an absolute verity; and that, in view of that assumption of risk, the causal negligence of Eggert in respect to lookout cannot be considered to afford any basis whatever for a recovery by Litzen.
However, in the verdict upon which the trial court is directed by the mandate to enter judgment, the jury found also that Eggert was causally negligent in failing, (1) to drive his automobile to the right of the center of the highway, and (2) to have it under control; but that the risk incidental to Eggert's negligence in these respects was not assumed by Litzen. As the findings of causal negligence on the part of Eggert in these two respects must likewise stand and be treated as absolute verities and as the effect of these findings is not impaired or otherwise affected by any other findings of fact in so far as the right of Litzen to recover from Eggert on those two grounds of causal negligence is concerned, Litzen is entitled to recover on those grounds the damages assessed by the jury, excepting in so far as the amount thereof must be diminished, under sec. 331.045, Stats., by reason of the jury's finding that ten per cent of the combined causal negligence of the parties was attributable to contributory negligence on the part of Litzen. The situation herein, in so far as that conclusion is concerned, is analogous in effect to the situation in Tracy v.Malmstadt, 236 Wis. 642, 647, 296 N.W. 87. In that case the plaintiff, Pauline Tracy, was injured while riding as a guest in a car driven by Edward Malmstadt, when it collided *Page 112 with another car. The jury found Malmstadt causally negligent in respect to lookout, control, not keeping in the proper traffic lane, and not having the windshield wiper properly adjusted. No question as to Tracy's assumption of risk was requested or submitted. But the court granted Malmstadt's motion for a new trial on the ground that no question was submitted as to whether Malmstadt had failed to exercise ordinary care which increased the danger. On an appeal from that order we held that, although on the grounds of the negligence of Malmstadt in respect to control and not having the windshield wiper properly adjusted there could be no recovery by Tracy, in the absence of findings that he had thereby created or increased a danger as to which Tracy had not assumed the risk of injury, nevertheless she was entitled to recover judgment on the remaining findings in the verdict that Malmstadt was causally negligent because of his failure in respect to lookout and keeping in the proper lane, as to which negligence he was liable to his guest regardless of whether these violations of duty created or increased a danger as to which she had not assumed the risk of injury. In other words, because there was liability on the part of Malmstadt to Tracy on the grounds of his causal negligence in respect to lookout and keeping in the proper lane, she was entitled by reason of the findings in these respects to judgment on the verdict for the recovery of her damages from Malmstadt although there could be no recovery for his negligence as to control and the defective windshield wiper in the absence of findings that thereby the danger was increased beyond what had been assumed by Tracy.
So likewise in the case at bar Litzen is entitled to recover from Eggert on the grounds of his causal negligence in failing to operate to the right of the center of the highway and to have his automobile under control, as to neither of which the danger of injury had been assumed by Litzen, even though *Page 112a there can be no recovery based on Eggert's negligent lookout because the risk of the danger by reason thereof had been assumed by Litzen. It follows that the trial court in endeavoring to comply with the mandate on the first appeal erred in not entering judgment on the verdict for Litzen's recovery from them of ninety per cent of his damages as assessed by the jury; and that consequently Litzen is entitled to the writ ofmandamus to compel compliance with the mandate in that respect.
By the Court. — Let a peremptory writ of mandamus issue accordingly.
BARLOW, J., took no part.
The following memorandum was filed April 13, 1943: