* Motion for rehearing denied, with $25 costs, on February 9, 1943. *Page 502 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 503 Action by Richard Koepke against John A. Miller and another commenced June 24, 1940. From a judgment in favor of the plaintiff entered May 15, 1942, the defendants appeal.
The action is by a guest against his host for injuries received while riding in an automobile that ran into a moving railroad train.
The evidence is undisputed or the jury might rightly infer therefrom that the collision occurred at about 4 a.m. on January 21, 1940. The weather was cold, the windshield and side windows frosted, and the streets icy in spots. The three occupants of the car were in the driver's seat. Miller, the driver, was at the left, Koepke in the middle, and Robb, a cousin of Koepke, on the right. Koepke and Robb went out together early in the evening for a good time, made the round of several taverns, at nearly all of which they drank liberally of intoxicants. Sometime around 2 o'clock Robb left Koepke at a tavern for a while, and when he returned Koepke was with Miller in the tavern where Robb had left Koepke. Miller had been drinking heavily but seemed to be carrying his load "perfectly" and to converse "well." Robb was anxious to get Koepke to go home with him but after a parley the three got in Miller's car and left for another designated tavern. The windshield was coated with frost, and after starting the engine the defroster was turned on and the engine kept running until a semicircular space about four inches' high was cleared at the bottom of the windshield on both sides, through which Miller and Robb could see ahead. The windshield in front of Koepke was not cleared at all and he could not see through it. Under these conditions the three started out. The collision occurred seven to twelve minutes later. Miller drove the car at twenty to twenty-five miles per hour. He made a right and a left turn at two street intersections, stopped at two arterials where there were no traffic lights, and passed one arterial where there were lights that were showing in his *Page 504 favor, and otherwise managed the car properly until he neared a railroad track that crossed the street at some deviation from a right angle. An automobile stood on the right side of the street on which Miller was driving twenty to twenty-five feet from the track waiting for a moving freight train to clear the crossing. On nearing this automobile Miller turned out to pass it and increased his speed. Robb then realized that Miller had not seen the train and called out to him to stop, but the car was so close to the track that he was unable to do so before running into the side of the train. It does not appear whether the street was icy at this point although Robb stated that it possibly was. Robb saw the train when one hundred to two hundred feet from it, and noticed a street light beyond the track flicking through between the boxcars as they passed. He also saw the train's headlight toward his right through a side window when it crossed a street called Beloit road that crosses the railroad track from southwest to northeast two hundred feet from where the railroad track crosses Sixtieth street on which Miller was driving south. Miller did not see the train until Robb called out. Robb also heard the train whistle for the Beloit road and heard the noise of the wheels pounding over the rail joints and Miller did not hear it.
On the trial the court found Miller as matter of law causally negligent, (a) "in respect to the lookout kept" by him, and (b) "in respect to his failure to stop his automobile in time to avoid the collision." The jury found the hazards that Koepke knowingly assumed when he entered the automobile were added to by the negligence of Miller, (a) as to lookout, and (b) that the negligent lookout of Miller did not persist long enough to give Koepke opportunity to protest. They also so found as to Miller's negligence in failing to stop, and found that Koepke was not negligent as to lookout or as to warning Miller of the presence of the train. The damages of *Page 505 Koepke for expenses in caring for his injuries to the time of trial were fixed by the court at $461 without objection, and the damages due to his other injuries were assessed by the jury at $5,739. Judgment was entered in favor of Koepke for the aggregate of these amounts. The action is brought by a guest, Koepke, against his host, Miller, and his insurer, to recover for injuries sustained by him in a collision of the automobile in which he was riding with a moving freight train at a railroad crossing, which injuries were alleged to have been caused by the negligence of Miller in driving the automobile.
The appellants contend in substance that the court erred, (1) in not submitting to the jury the issue of Miller's negligence; (2) in not ruling that Koepke as matter of law assumed the risk of injury; (3) in not holding Koepke guilty of contributory negligence as matter of law; (4) in refusing to submit to the jury the form of special verdict requested by the defendants; (5) in submitting the issues by the form of verdict submitted; (6) in permitting a witness, Robb, to testify as to observations made in daytime two years after the collision as to how far he could see on the instant street ahead of an automobile; (7) in not granting a new trial; (8) in not reducing the amount of the verdict. These contentions will be considered in the order stated.
(1) Under this head two points are involved: Whether as matter of law Miller was negligent and whether his negligence. was proximately causal. No other conclusion could *Page 506 reasonably be drawn from the evidence stated preceding the opinion than that Miller was negligent as to lookout. It is undisputed that Robb saw and heard the train and that Miller did not hear it or see it until Robb called out to him to stop. Miller could and should have seen the train as soon as Robb as matter of law. Miller was therefore negligent as to lookout. As to the negligence being causal, it is undisputed that Robb was at least one hundred feet away from the train when he saw it and that the automobile was traveling between twenty and twenty-five miles per hour. By the table prepared by the highway commission, at twenty miles per hour a car can be stopped within forty feet and at thirty miles per hour in seventy-three feet. Miller had no difficulty in stopping his car at two arterials just previous. If he had seen the train when Robb saw it he could manifestly have stopped before he reached the track. His want of lookout was therefore causal as matter of law. It may be doubted whether, independent of lookout, there was negligence in failing to stop the car before reaching the moving train, as it does not appear that after Robb called out for him to stop anything could be done by Miller to avoid the collision. But this is immaterial. Miller's causal negligence as to lookout is all that is necessary to fix his responsibility. One valid ground existing it is immaterial whether any other existed.
(2) It is true that Koepke assumed the risk incident to the icy condition of the street, to the frosty condition of the windshield and side windows, and to Miller's intoxication, if any, and to the lateness of the hour as affecting loss of sleep. But he did not assume the risk of Miller's want of lookout.Poneitowcki v. Harres, 200 Wis. 504, 228 N.W. 126. The jury found that the want of lookout did not persist long enough to give Koepke time to protest. There was no reason for Koepke to think that Miller was not maintaining proper lookout until Robb called out, as theretofore on the trip Miller had driven the car properly. We consider that the issue of assumption of risk was for the jury to decide. *Page 507
(3) The only ground for holding Koepke guilty of contributory negligence as matter of law would be that he sat where he could not see through the windshield. But we held in Schmidt v. Leuthener, 199 Wis. 567, 227 N.W. 17, that a guest is not guilty of negligence as matter of law when he goes to sleep in the rear seat of an automobile, and thus keeps no lookout at all. With equal reason a guest is not so guilty for not keeping a lookout because he is sitting back of a part of the windshield that is so frosted that he cannot see through it. The jury's finding that Miller's negligence did not persist long enough to give Koepke opportunity to protest also exonerates him from negligence in not warning Miller. Koepke's not warning would not be causal in any event, as Robb gave all the warning that Koepke could have given and that was too late to be effective.
(4), (5) The defendants prepared a long form of special verdict and requested its submission. The failure to submit the requested questions covering Miller's causal negligence becomes nonprejudicial in any view because those questions were properly decided by the court as matter of law. As to assumption of risk, the questions on that issue were prepared by the court. We consider them proper under the rule of this court first pronounced in Cleary v. Eckart, 191 Wis. 114,210 N.W. 267, and since consistently adhered to. The questions on contributory negligence also presented that issue properly. The verdict submitted being proper and sufficient there was no occasion to submit the verdict requested by defendants or any question in it.
(6) Reference to the record discloses that the objection to the testimony of Robb here objected to was brought out by the defendant's counsel upon cross-examination. They cannot therefore allege error upon it, even if it be erroneous and we do not discuss whether it is error.
(7), (8) We consider that the only ground for a new trial that could be presented with any show of reason is that the damages assessed by the jury for personal injuries sustained *Page 508 are excessive. The claim under (8) is twofold: Excessiveness, and that because thereof the court should reduce them. The latter the court cannot do except in case of liquidated damages as to the amount of which there is no dispute. See the recent cases of Campbell v. Sutliff, 193 Wis. 370, 377,214 N.W. 374, and Borowicz v. Hamann, 193 Wis. 324,325, 214 N.W. 431. They sufficiently cover the question and we see no occasion to discuss the matter here. The damages assessed aside from expense of care up to the time of trial are $5,739. This includes a future nose operation at estimated cost of $325, and loss of earnings amounting to $922.50. This leaves $4,491.50 for pain and inconvenience past and future and future disability. The plaintiff sustained a severe skull fracture, a severe brain concussion, bruises about the head, a broken nose, loosened and broken teeth, and a fractured jawbone, and a scarred face. As a result he has lost his sense of smell entirely and has some double vision and a face disfigurement that may be cured in part by the nose operation above referred to. We perceive no evidence of permanent physical disability except as may be incident to his nose and eye condition. On the whole we consider the award within the province of the jury to make, especially in view of an award of $12,000 by a jury in a former trial.
Other faults are found with the trial which we have considered. Some of them go to alleged failure to submit questions as to specific assumptions of risk which we have indicated above the plaintiff assumed as matter of law. The others are hypercritical and insignificant and do not require or merit particular mention.
By the Court. — The judgment of the circuit court is affirmed. *Page 509