Summary
In Swartz v. Sommerfeldt (1956), 272 Wis. 17, 74 N.W.2d 632, we held that a motorist is relieved from giving a signal of intention to make a left turn unless he can or shall have seen a car approaching from his rear.
Summary of this case from Pedek v. WegemannOpinion
January 9, 1956 —
February 7, 1956.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Reversed.
For the appellant there were briefs and oral argument by Crosby H. Summers of Janesville.
For the respondents there was a brief by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Louis D. Gage, Jr., and Roy E. Berg, all of Janesville.
The action was commenced by plaintiff Raymond H. Swartz against defendant Virgil Sommerfeldt and Rural Mutual Casualty Insurance Company of Wisconsin, for property damages arising out of a collision between the automobiles of the plaintiff and defendant Sommerfeldt. Upon the verdict of a jury, finding that defendant was negligent in two respects but that such negligence was not causal, judgment was entered dismissing plaintiff's complaint. From that judgment plaintiff appeals.
Plaintiff was the village marshal in Footville, Wisconsin. Defendant, aged eighteen, lived on Highway 11 southwest of Footville. Plaintiff testified that about 5 p. m. on August 27, 1953, while patrolling the streets of Footville, he observed defendant's car speeding. He turned on his flashing blinker lights and followed defendant's car south onto Highway 11 out of the village. When he reached the village limits he turned on his siren. After completing a curve about one-quarter mile north of the Sommerfeldt farm he turned into the left lane and when the cars were about 150 feet from the Sommerfeldt driveway they were parallel. Plaintiff could not tell what his exact speed was because he had locked his speedometer at 62 while still within the village limits, but he estimated that he was traveling 75 or 80 miles per hour as he gained on the defendant's car. When the cars were parallel the speed of both had reduced to 40-45 miles per hour. When 100 feet from the driveway defendant came toward the center of the road and plaintiff pulled off on the side of the road, partially on the shoulder. When the cars were 10-15 feet from the driveway defendant turned sharply left into plaintiff's car.
Photographs introduced into evidence showed that the damage to the plaintiff's car was just ahead of the right front door and the damage to the defendant's car was at the left front headlight. Skid marks made by the plaintiff's car extended in a southeasterly direction for about 120 feet in the east lane.
Defendant testified that he looked in his rear-view mirror several times between the village limits and the place of the accident and saw no car behind him; that the last time he looked he was about 100 feet from the driveway; that he did not hear the siren until he started his left turn; that he gave no signal of his intention to turn.
It is undisputed that the road between the Sommerfeldt driveway and the curve immediately to the north is straight and slightly upgrade toward the south.
The trial court determined as a matter of law that the plaintiff was driving a privileged vehicle and was therefore exempted from actionable negligence by the provisions of sec. 85.12 (5), Stats. The special verdict submitted to the jury inquired only as to negligence on the part of the defendant, and it found him negligent with respect to:
"(a) Deviating from the traffic lane in which he was operating without first ascertaining that such movement could be made with safety to other vehicles approaching from the rear.
"(b) Giving an appropriate signal of his intention to turn."
It also determined that such negligence was not causal and set plaintiff's damages at $455.30.
The only question presented on this appeal is whether defendant's negligence in either of the respects found by the jury was causal as a matter of law.
Both items of negligence found by the jury are grounded in defendant's failure to observe the proximity of the plaintiff's car before he made his turn. The jury must have believed that a proper observation would have disclosed plaintiff's presence; otherwise it could not have found defendant negligent of deviating from his lane of travel "without first ascertaining that such movement could be made with safety to other vehicles approaching from the rear" (sec. 85.16(2), Stats.). It was defendant's duty to see only such vehicles to his rear as could be seen. If, under all the circumstances, plaintiff's car could not be seen by him, the jury could not find him negligent in the first respect. Likewise, as to failure to give a signal (sec. 85.175 (1) and (2)), it could not have found him negligent unless it believed that he could and should have seen the plaintiff's car, since the law requires a signal only under circumstances where other traffic may be affected by the contemplated turn.
The evidence supports the jury's findings as to negligence. It was not incumbent upon it to believe plaintiff's testimony that the two cars were parallel for 100-150 feet before defendant turned, and obviously it did not, since if that were true defendant could not have avoided seeing plaintiff's car before he turned. It is undisputed, however, that the distance between the curve and the driveway approximated one-quarter mile or 1,320 feet. Considering such distance together with plaintiff's estimated speed and the fact that his car was struck on the right side, the conclusion is inescapable that wherever plaintiff's car was when defendant prepared to turn, it would have been visible to the defendant had he made a proper observation to the rear. Even if plaintiff were traveling at 80 miles per hour during that entire distance, he was behind the defendant for at least ten seconds before the turn was made on a stretch of road where nothing interfered with defendant's ability to see him.
It is argued that plaintiff must have known defendant intended to turn and a signal would have told him nothing he did not already know. That is beside the point here. Defendant's negligence must be held to be causal, not because a signal would have made it possible for the plaintiff to avoid being struck, but because the failure to see plaintiff's car was the basis of defendant's mistaken belief that he could make the turn in safety. In other words, it is presumed that defendant would not have turned had he known of the plaintiff's proximity, a fact he would have known had he not been negligent in failing to make the observation which the law requires.
The accident happened because defendant, without ascertaining that plaintiff was approaching from the rear, turned left as plaintiff's automobile came up alongside. Whether plaintiff's operation of his vehicle was negligence which contributed to the accident was not submitted to the jury and is not before us on this appeal. The trial court ruled that plaintiff was exempted from actionable negligence under sec. 85.12 (5), Stats., and denied defendant's motion to include in the special verdict issues as to plaintiff's negligence. The statute, after providing for the exemption, states:
"This exemption shall not, however, protect the operator of any such vehicle from the consequences of a reckless disregard of the safety of others."
Defendant did not allege that plaintiff's operation of his patrol car amounted to recklessness nor did he request submission of such a question to the jury.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in favor of the plaintiff in the amount found by the jury.