On the motion for a rehearing, respondent contends the ruling herein, that a guest's right to recover for injury caused by his host's acts of causal negligence in the two respects, as to which there was no assumption of risk, was not barred by his assumption of the risk occasioned by the host's causally negligent lookout, is contrary to prior decisions by this court. In support of this contention respondent relies principally upon the decisions inWalker v. Kroger Grocery Baking Co. 214 Wis. 519,252 N.W. 721; Scory v. LaFave, 215 Wis. 21,254 N.W. 643; Knipfer v. Shaw, 210 Wis. 617,246 N.W. 328, 247 N.W. 320; and Raddant v. Labutzke, 233 Wis. 381,289 N.W. 659. A study of the decisions therein will disclose, however, that there was no express determination therein in relation to the proposition involved in that ruling.
In the Walker Case, supra, there was no occasion whatever to pass upon that proposition. Walker, the host, was found causally negligent in respect to lookout and also control and management; and in sustaining these findings we held that *Page 112b his guests, Iselin and Bashaw, had assumed the risk of injury incident to Walker's negligence in each of those respects. In the absence of any claim that there was any negligence on the part of Walker in any other respect, because of which he could be held liable to his guests, we held that there was no such liability whatever on his part. This decision, made in the absence of other negligent acts of the host as to which the guest had not assumed the risk, clearly is not in point on the question as to whether there can be a recovery by the guest based on such other acts of negligence.
Similarly, in the Scory Case, supra, the jury found that the host, LaFave, was causally negligent in parking her automobile on the wrong side of the road, and in turning on the bright lights; and that she thereby increased or added a new danger to her guest, Scory. On motions after verdict, the trial court held that Scory assumed the risk of LaFave's negligence in both respects. On plaintiff's appeal from a judgment dismissing her complaint against the defendant, Swanson (against whom Scory had commenced the action to recover for injury caused by his negligence in operating his car as it collided with LaFave's car), we said that —
"the injury to plaintiff, which followed the combination of her host's negligent acts, was primarily caused rather by the latter's antecedent negligence in parking than by the subsequent turning up of the lights. Under the circumstances, as Mrs. LaFave's negligence in the latter respect cannot well be separated from her prior negligence in parking, which actually created the dangerous situation assumed by plaintiff, she is also deemed, in law, to have assumed the risk involved in that situation by reason of her host's negligence in incidentally increasing the danger by turning up the lights. . . . It follows that, as to Mrs. LaFave, plaintiff's right to recover from her is defeated by her assumption of the risk." (p. 27.)
As that determination was based on the conclusion that Scory had assumed the risk incident to the respects in which *Page 112c her host LaFave was causally negligent, and there was no causal negligence in other respects on the part of LaFave, as to which there was no assumption of risk by Scory, there was no occasion to consider or determine the particular question involved herein.
In the Knipfer Case, supra, the action was brought by plaintiff against Shaw, but on his motion plaintiff's husband, Joseph Knipfer, was interpleaded and charged, in Shaw's cross complaint for contribution, with causal negligence in several respects in operating the car in which he and plaintiff were riding when it collided with Shaw's car. The jury found both Shaw and plaintiff's husband were causally negligent in respect to lookout, control, and driving to the left of the center of the highway; and also found that plaintiff, in riding in her husband's car under the existing conditions, did not assume the risk of injury. On defendants' appeal from a judgment against them, we held that a person may not ride in a car for many miles under such foggy and dangerous conditions as existed at the time in question without fully assuming the risk of injury incident to such a trip; and that the plaintiff assumed the risk, and in justice should not be permitted to recover damages from her husband. Whether that assumption of risk was as to all or but part of the three respects in which the husband was negligent is not stated in the opinion. But in concluding also that plaintiff could not recover from Shaw, we held that, in view of the conditions and situation under which they were riding, her husband's negligence in respect to lookout, control and driving to the left of the center "should be imputed to the plaintiff and prevent her from recovering against Shaw." There is, however, no ruling on the particular question now under consideration.
In the Raddant Case, supra, the jury found that the guest had assumed the host's negligence in respect to speed, control and lookout. These findings were changed on motions after *Page 112d verdict by the court's order that there was no assumption of risk in any such respect. On the appeal we sustained the ruling in respect to control and lookout, but overruled the order changing the jury's finding that the guest assumed the host's negligence in respect to speed; and in reinstating that finding, we said, —
"As under the rule of this court assumption of risk is not contributory negligence but bars recovery [citing the Scory and Walker Cases], the motion of the defendant company for judgment on the verdict should have been granted." (p. 385.)
In thus concluding there was not discussed or taken into consideration the question as to whether the guest could recover from the host for his causal negligence in respect to lookout and control, even though the risk occasioned by his negligence in respect to speed had been assumed by the guest.
On the other hand, in Roeber v. Pandl, 200 Wis. 420,228 N.W. 512, this court held that damages could be recovered from the host, Pandl, on the ground of his causal negligence in respect to lookout for injury sustained by his guest, Roeber, although, in connection therewith and a finding that Pandl was also causally negligent in handling his car, it was further found that he did not "fail to exercise the degree of skill possessed by him in handling his automobile under such circumstances as then and there existed." As, in view of this latter finding, the injury to Roeber, in so far as the host's negligence in handling his car was a cause thereof, must be considered to have been sustained notwithstanding the host's exercise of the degree of skill which he possessed; and as he owed no duty to his guest to exercise a greater degree of skill, and there could therefore be no recovery by the guest for his host's negligence in handling the car, the denial of such recovery was because the guest, in effect, is considered to have assumed the risk incident to such lack of greater skill on the *Page 112e part of the host. It was on that ground that the guest was held not to be entitled to recover from the host in Eisenhut v.Eisenhut, 212 Wis. 467, 248 N.W. 440, 250 N.W. 441, although we recognized on a rehearing that technically speaking the basic reason for holding that a guest is not entitled to recover from his host, under such circumstances, should be considered to be rather because the host owes no duty to his guest to exercise a degree of skill which he does not possess, than because the guest voluntarily assumes the risk incident to the lack of greater skill. However that may be, although in the Roeber Case the guest was considered not to be entitled to recover for Pandl's negligence in handling his car, because it was found that he did not fail to exercise the degree of skill possessed by him, it was held that the denial of recovery by the guest on that ground of negligence did not operate to defeat his right to recover on the remaining ground of the host's negligent lookout.
In Young v. Nunn, Bush Weldon Shoe Co. 212 Wis. 403,249 N.W. 278, Young sued to recover for injury sustained while riding as a guest in the defendant Petras' car. The jury found Petras was causally negligent in respect to speed, lookout and control, and in attempting to pass to the right of a truck. The jury exonerated Young from contributory negligence in respect to lookout and to making protest as to Petras' speed and operation of the car; but also found that Petras operated his automobile at and immediately prior to the collision in the same manner that he usually and ordinarily operated it to the knowledge of plaintiff in respect to speed, management and control. Upon defendants' appeal from a judgment for recovery by Young, this court concluded that Young assumed the risk of Petras' negligence with respect to speed and also in respect to his intent to pass the truck upon its right. However, although by these conclusions there were eliminated as grounds for recovery by plaintiff *Page 112f from Petras his causal negligence in the two respects as to which we held Young had assumed the risk, we nevertheless said, —
"There remain to be considered two items of negligence on the part of Petras, with respect to which it can be said from the record that plaintiff had no opportunity to protest or acquiesce. The first relates to lookout. . . . Another act of negligence was found by the jury, with respect to which the trial court correctly held that there could be no opportunity for acquiescence or protest. That related to the question of control." (p. 408.)
We considered it necessary to pass upon those two remaining grounds of negligence before there could be a determination whether either Young was entitled to recover from Petras, or he was entitled to the dismissal of Young's complaint. It was only after we then concluded that there likewise was no liability on the part of Petras to Young on either of those two latter grounds of negligence that we held that Young could not recover from Petras.
So in the case at bar, although the finding that Litzen assumed the risk of Eggert's causal negligence in respect to lookout eliminated that item of negligence as a basis for recovery by Litzen from Eggert, and would have entitled him to the dismissal of Litzen's complaint, if that had been the only ground for recovery, the assumption of the risk by Litzen in respect to only that one item of negligence did not bar his right to recover on the other grounds of Eggert's causal negligence in failing to drive his car to the right of the center of the highway, and to have it under control. As the jury found that Litzen did not assume the risk of Eggert's negligence in either of these respects and those findings have not been set aside; and as the mandate on the first appeal directed that judgment be entered upon the verdict as rendered, of which those findings are still a part, Litzen is *Page 113 entitled to judgment thereon in accordance with the opinion heretofore filed herein.
By the Court. — Motion for rehearing denied.