Summary
In Kaestner v. Preferred Accident Ins. Co. (1950), ante, p. 6, 42 N.W.2d 260, it was held that the findings of fact by the trial court, which embraced plaintiff's version and were in accord with his evidence and that of the passengers in his car, but contrary to defendant's version, were not contrary to the great weight and clear preponderance of the testimony.
Summary of this case from Bradle v. JuutiOpinion
March 8, 1950 —
April 5, 1950.
APPEAL from a judgment of the circuit court for Kenosha county: ALFRED L. DRURY, Circuit Judge. Affirmed.
John V. Evans of Kenosha, for the appellant.
For the respondent there was a brief by Becker, Kinnel, Doucette Mattison of Milwaukee, and oral argument by Carl R. Becker.
The plaintiff and respondent, Kaestner, brought suit November 5, 1948, to recover damages for personal injuries and property damage resulting from a collision which took place September 20, 1947, between his automobile and the automobile of one Edward Clemons. The appellant insured Clemons against such liability. The accident occurred on United States Highway 41 at its intersection with County Highway N. The two northbound traffic lanes of United States Highway 41 are separated from the two southbound by a grass parkway. The trial court found that the accident was attributable seventy per cent to the negligence of Clemons in deviating from the right northbound traffic lane into the left northbound lane, in his failure to heed Kaestner's warning signal and keep in the right lane, and in failing to ascertain that turning to the left could be done with safety to Kaestner's vehicle. It found the remaining thirty per cent was attributable to Kaestner's negligence in the management and control of his automobile and in the speed at which he drove it, and in passing Clemons at an intersection. Judgment was entered September 1, 1949, allowing plaintiff seventy per cent of his damages and the insurance carrier has appealed.
Other material facts are referred to in the opinion.
Plaintiff's version of the accident differed materially from that of Clemons, particularly in respect to the courses steered by Clemons in the last one hundred twenty-five feet before the collision. As an overtaking driver plaintiff was in position to see and to know whereof he spoke and his credibility was for the trial court. The findings of fact embraced plaintiff's version and are in accord with his evidence and that of the passengers in his car. While contrary to appellant's version, they are not contrary to the great weight and clear preponderance of the testimony.
Appellant has prepared a schedule of time, space, and relative positions of the two automobiles designed to demonstrate that the Kaestner testimony is incredible. The schedule is based on the hypothetical speed of each automobile at intervals of seconds before the collision. Evidence of speed, time, and distance was necessarily by estimate only and we do not consider that this schedule prepared from such estimates does or can demonstrate that the collision must have occurred otherwise than as plaintiff said or the court found.
Appellant submits that, as this collision took place when Clemons was making a left turn at an intersection and the trial court has found plaintiff negligent in attempting to pass at an intersection, plaintiff's negligence was at least equal to that of Clemons, citing J. W. Cartage Co. v. Laufenberg, (1947), 251 Wis. 301, 28 N.W.2d 925. There is at least one significant and controlling difference in the facts of that case and the present one, namely, the collision in the former took place at an intersection where passing was unlawful and ". . . defendant had a right to assume no one would attempt to pass in the intersection." ( 251 Wis. 301, 305.) Clemons, however, was approaching an intersection in the open country, as the exhibits show, upon a highway properly marked by traffic lanes. Passing at such a place is not unlawful (see sec. 85.16(6), Stats.), and defendant did not have the right to assume no one would do so. Indeed plaintiff had blown his horn to warn that he expected to pass. The circumstances in the two cases are so different that we consider the learned trial court was not required to treat the J. W. Cartage Co. v. Laufenberg Case, supra, as authority compelling an equal division of causal negligence in the cause on trial.
By the Court. — Judgment affirmed.