Summary
In Paulus, the Wisconsin Supreme Court concluded that a defendant was not guilty of negligence as a matter of law when a vehicle travelling in the opposite direction from defendant's vehicle crossed the median and struck defendant's vehicle.
Summary of this case from Berg v. NelsonOpinion
December 8, 1955 —
January 10, 1956.
APPEAL from a judgment of the circuit court for Oconto county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellant there was a brief by Hanaway Byrnes of Green Bay, and oral argument by Charles T. Hanaway.
For the respondents there was a brief by Evrard, Evrard, Duffy, Holman Faulds of Green Bay, and oral argument by John P. Duffy.
This action was commenced on August 10, 1953, to recover for personal injuries sustained as a result of an automobile collision which occurred on May 8, 1953, at about 9:30 p. m. Plaintiff, Lyle Arpin, aged twenty-three, was a guest in a 1947 Chevrolet coupe automobile owned and operated by the defendant, Jerome Truskowski, aged nineteen. The parties were returning from work and TV school in Chicago to their homes in the vicinity of Green Bay. Donald Paulus, aged nineteen, was another occupant of the car. They were proceeding north in the east lane of U.S. Highway 41 in Racine county at the time of the collision. The highway consists of two adjoining northbound and two adjoining southbound lanes, each about 20 feet wide and divided by a boulevard about 20 feet wide. The weather was clear, the moon was bright, visibility was good, and the road was dry and level. The terrain of the boulevard was rough and contained grass. There was nothing to interfere with the view toward both the north and the south for some considerable distance from the scene of the accident.
At the time of the collision Truskowski had been following an unidentified truck at a distance of about 200 to 300 feet and was traveling at the rate of from 40 to 55 miles per hour. Plaintiff was asleep. Defendant Wade was driving a 1949 two-door Ford sedan automobile south in the lane on the west side of the highway. About a quarter of a mile north of the scene of the accident he passed a southbound truck driven by one Kiewatt and was traveling at a speed of from 60 to 65 miles per hour. The left front tire of the car driven by Wade blew out when the car reached a point about 500 feet ahead of the Kiewatt truck. The car driven by Wade swerved first to the west shoulder of the highway, then southeasterly across the southbound lanes of traffic onto the boulevard, and then southeasterly on the boulevard to and onto the northbound lanes of traffic. Wade entered the northbound lanes traveling southeasterly, and struck the rear wheels of the northbound unidentified truck, spun about twice, continued southerly and struck Truskowski's car, which was then in approximately the center of the northbound lanes. The right front and side of the Truskowski car came into collision with the left front and side of the Wade car.
A jury in answer to questions of a special verdict found Truskowski not negligent with respect to either lookout or control, and also exonerated the plaintiff of negligence. Wade was found guilty of causal negligence with respect to speed and operating the automobile with a defective tire. The usual motions after verdict were made. In a memorandum opinion the trial judge stated that at one time he had considered granting a new trial because of error, but that he had later concluded that the errors were not prejudicial since he was of the opinion that a verdict in favor of the defendant Truskowski should have been directed. Judgment on the verdict and dismissing the complaint against the defendant Truskowski was entered on January 8, 1955. This appeal is from the judgment.
The plaintiff contends that the trial court erred in its determination that a verdict should have been directed and that, consequently, he is entitled to a new trial for such error. He urges also that the host Truskowski should have been found guilty, as a matter of law, of causal negligence with respect to lookout. He concedes that the question whether Truskowski was guilty of negligence as to control was for the jury.
The testimony bearing upon the question whether Truskowski was causally negligent with respect to lookout in substance is as follows:
Truskowski testified that his view ahead was unobstructed; he did not see the Wade car come across the boulevard, he first saw it when it was 50 to 75 yards away when it seemed to swerve and miss the truck ahead of him; he was then going from 50 to 55 miles per hour; he could have stopped his car in a distance of about 115 feet; he turned to his left and applied his brakes when he first saw the car driven by Wade; at the time of the collision his car was traveling at the rate of about 15 miles per hour; he looked at plaintiff Arpin very shortly before the collision, which may account for the fact that he did not see the Wade car come across the boulevard; the collision occurred just to the west of the center line of the north lanes. Donald Paulus, another occupant of the Truskowski automobile, saw Wade come across the boulevard; it traveled about 70 feet on the boulevard; when he first saw the lights of the car driven by Wade, they were about 500 feet from the Truskowski car; the car driven by Wade traveled in the northbound lane for about 200 feet and appeared not to be under control. Richard Kiewatt, the driver of the southbound truck which Truskowski had passed shortly before the accident, testified that Wade traveled on the boulevard for a distance of about 200 feet; Truskowski's car was about 300 feet behind the unidentified truck; when Wade entered the boulevard, Truskowski was about 800 feet from the Wade car when the car driven by Wade struck the northbound truck, the Truskowski car was about 300 feet behind the truck; immediately after the tire blew out, the car driven by Wade swerved to its right onto the west shoulder and traveled on the shoulder a distance of approximately 75 feet and then swung to the east and traveled across the boulevard and north lane before striking the truck.
Testimony most favorable to the plaintiff indicates that Truskowski did not see the car driven by Wade until the latter struck the unidentified truck and when it was 150 to 200 feet ahead of him, whereas the witness Paulus saw its light when they were 500 feet from the Truskowski car, and as it traveled about 70 feet on the boulevard, and Kiewatt saw that the Truskowski car was about 800 feet from the car driven by Wade when the latter entered the boulevard, and was about 300 feet behind the truck when the car driven by Wade struck the truck. None of this testimony is controverted, and plaintiff contends that since it was possible for Truskowski to have seen the car driven by Wade sooner than he did, he should be held guilty of negligence as to lookout as a matter of law.
We have no difficulty in concluding that Truskowski was not guilty of negligence with respect to lookout as a matter of law. We are aware of no rule that requires the driver of an automobile on a boulevard highway, the lanes of which are separated by a centerpiece, to keep a lookout to his left and across the centerpiece so as to observe vehicles traveling in the opposite direction. There was no obligation under the law on the part of Truskowski to have observed the car driven by Wade while it was traveling in the southbound lane of traffic.
The car driven by Wade went out of control when the blowout of the tire occurred. The undisputed testimony indicates that Wade first swung to his right (west) and then swerved to the left (east). It traveled 50 to 75 feet before entering the centerpiece. It then "shot" diagonally across the centerpiece and into the northbound lane, "fishtailing and bouncing up and down," for about 200 to 250 feet before striking the truck which preceded the Truskowski car. Truskowski did not observe the car driven by Wade until a moment before it struck the truck. He slowed his car to 15 miles per hour and turned it to the right. The distance between the truck and the Truskowski car when the truck was struck by the car driven by Wade was 200 to 300 feet.
Had it not been possible for Truskowski to have observed the Wade automobile until it invaded Truskowski's lane, then clearly the situation would be controlled by the emergency doctrine as enunciated in Havens v. Havens (1954), 266 Wis. 282, 63 N.W.2d 86; Feinsinger v. Bard (7th Cir. 1952), 195 F.2d 45; Hoehne v. Mittelstadt (1948), 252 Wis. 170, 31 N.W.2d 150.
Were it to be found that Truskowski's failure to have observed the car driven by Wade while it was crossing the centerpiece, constituted negligence, it is nevertheless inconceivable that under circumstances as detailed in the record affecting the situation, any valid determination could be made that such negligence was an efficient cause of the injuries sustained by the plaintiff. Notwithstanding that Truskowski did not observe the car driven by Wade as it "shot across" the centerpiece, an emergency was created, to which any failure of lookout on Truskowski's part did not contribute. The driver of the unidentified truck which preceded the Truskowski car apparently observed the car driven by Wade as it crossed the south lane, the centerpiece and a part of the north lane, but he was unable to avoid being struck by it, despite the fact that he turned the truck toward the east shoulder. The car driven by the lady behind the car of Truskowski, swung into the centerpiece. While her car was not struck, it appears that until the Wade car came to rest, she too was in a position of having her car run into by the Wade car. Regardless of any course that Truskowski might have adopted had he seen the Wade car after it entered upon the centerpiece and before it was observed by him in the north lane, he was exposed to the danger of having his car struck by the Wade car. Any finding that negligence of Truskowski with respect to lookout contributed to the emergency or to the injuries sustained by the plaintiff, could not stand. It is considered that an emergency situation was created as a matter of law at least at the time when the car driven by Wade started to cross the centerpiece. Affected by such emergency were the respective vehicles driven by Truskowski, the truck immediately ahead of him, and the car immediately behind him. None of the drivers of these particular northbound cars wholly or partly created the emergency.
We are of the opinion that the court's ruling, to the effect that a verdict in favor of Truskowski ought to have been directed, was correct.
By the Court. — Judgment affirmed.
BROADFOOT, J., dissents.