Opinion
March 2, 1953 —
March 31, 1953.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Affirmed.
For the appellants 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., all of Janesville.
Judgment on a verdict was entered April 12, 1952, dismissing the plaintiff's complaint and awarding damages to defendant, Gunnelson, on his counterclaim. The plaintiff has appealed.
Automobiles belonging to the respective parties were damaged in a collision between them. Trial resulted in a special verdict by which the jury found that the defendant (1) was not negligent as to lookout, (2) was negligent as to speed and failure to sound his horn but that neither of these was a cause of the collision, (3) was causally negligent in the management and control of his automobile, and (4) that such negligence was 35 per cent of the cause of the collision. The jury also found that the plaintiff was causally negligent in respect to lookout and such negligence was 65 per cent of the cause of the collision. Plaintiff's appeal alleges error in the court's instructions to the jury and alleges that the findings of causal negligence (in (2) above) are contrary to the evidence as a matter of law, resulting in an erroneous comparison of negligence. He seeks a new trial.
The collision occurred at night. Defendant was driving south on State Highway 51. The jury could find his speed was at least 50 and not more than 60 miles per hour. Plaintiff was driving west on a side road which intersected Highway 51 at right angles. The state highway is a concrete strip 20 feet wide bordered on each side by shoulders 10 feet wide. East of the east shoulder and 17 feet distant from it, at the edge of the side road is a sign directing the motorist to stop before going upon the state highway. The sign is 27 feet from the east edge of the concrete and 37 feet from the center of the highway. Plaintiff stopped at the sign and looked to his right (north) and saw the lights of defendant's car approaching. His observation was a momentary one and he testified that it did not tell him how far away defendant was nor how fast he was going. He was sure that defendant was more than 100 feet north of the intersection when he looked but he did not care to guess whether defendant was more than 200 feet distant. Plaintiff's counsel presents computations based on various assumptions of speed and the space covered by both parties to the point of collision (which was near the west edge of the concrete in the intersection), and by virtue of such calculations he contends that when plaintiff stopped to look defendant was some 750 feet north of the intersection. Having stopped, looked, and concluded he could enter the highway and make his turn to the south without colliding with defendant, plaintiff drove onto the highway and commenced his turn but had not completed it when defendant struck the right front corner of plaintiff's truck and then went into the ditch on the west side of the highway. Plaintiff, never looked at and never saw defendant after he put his car in motion at the stop sign.
Defendant saw plaintiff at all times after plaintiff approached the sign and came to a stop at it. He testified that he was about 250 feet away when plaintiff so stopped and he thought plaintiff was going to let him go by, so he maintained his speed. When plaintiff started, defendant took his foot off the gas pedal but he saw plaintiff pause at the edge of the concrete which assured him that plaintiff did not intend to come on the highway ahead of him, so he did not apply his brakes nor did he turn out until, after pausing, plaintiff continued to come into the intersection. Then, although defendant attempted to turn out to the right (west), he did not succeed in avoiding a collision.
For the purpose of the opinion the casualty companies which insured the respective automobile owners may be disregarded.
The jury found plaintiff causally negligent in respect to lookout and the first question which plaintiff raises is whether the jury was properly instructed on this subject. The instruction given by the court was a standard one and we regard it as adequate and appropriate to the situation which the evidence disclosed. Plaintiff does not contend it to be erroneous but asserts it should have been supplemented by the following which he requested but which the trial court refused to give:
"Thoms having, upon entering the intersection, observed Gunnelson's car, and having concluded that it was approaching at a distance and speed which afforded Thoms plenty of time to cross safely ahead of it, was not obliged to keep a continuous lookout to the north. It was his duty to also observe traffic conditions ahead and to his left. Meanwhile he was entitled to advance into the intersection which he had concluded that he could cross in safety. Where and when it was incumbent upon him to take another observation to the north, depended upon the existing traffic conditions as he knew, or in the exercise of ordinary care ought to have been aware of, and in that connection he was entitled, with the exercise of ordinary care, to rely upon his observations and conclusions upon that first view. All of these considerations are involved in your determination of whether Thoms was negligent in respect to keeping a proper lookout."
We consider that the trial court properly refused to give this instruction which bases Thoms' right to come into the intersection, without further observation, upon his own conclusion that he could do so safely. The conclusions of a driver are not the tests of whether he is operating his automobile with ordinary care. The trial court correctly charged that the driver is required to keep such a lookout as a reasonably prudent person would keep under, the same or similar circumstances and that his lookout must be an efficient one. Thoms' right to enter the intersection in the path of Gunnelson's automobile depends not on whether he concluded he could do so safely but on the quality of the lookout upon which his conclusion was founded. A conclusion which was the product of deficient lookout would confer no rights upon him, but the requested instruction ignores this. We consider it was misleading and correctly rejected by the trial, court.
Counsel calls it to our attention that the language of his proposed instruction is that of this court in Trautmann v. Charles Schefft Sons Co. (1930), 201 Wis. 113, 118, 228 N.W. 741. In that case a driver named Haasch, approaching a street intersection, was faced with two other vehicles also coming into the intersection from two other directions. The jury found Haasch was not negligent in lookout or in any other respect. Our opinion discussed the evidence which supported the findings and included the language which plaintiff asked the trial court to repeat in the present case. We point out that the jury had found Haasch's lookout was sufficient, thus establishing as a fact the element which the present plaintiff, before verdict, can only hope will be so found. Our discussion of drivers' conclusions must be read with this established fact in mind. Words used in opinions after facts are fixed by a verdict are not necessarily appropriate before verdict when the facts are still in dispute. The trial court in the Trautmann Case, supra, would have been wrong if it had instructed the jury in terms which were quite suitable to explain the verdict after it had been rendered.
The jury found that the defendant's speed was a negligent one but was not a cause of the collision. Plaintiff submits that such speed must have been a cause as a matter of law because, in plaintiff's view of the evidence, defendant saw plaintiff when they were nearly 750 feet apart and at all times thereafter but proceeded to the point of collision without material reduction of speed. He reasons that it must have been the speed which caused the collision. At the distance which plaintiff assumes, defendant had ample time to reduce his speed; his failure to do so was a matter of management and control, and in that the jury found him negligent. We do not think we can disturb a finding that the collision was caused by this negligent management rather than by the excessive speed itself. The jury was privileged to consider that defendant's automobile would have overtaken plaintiff's and struck it, under the circumstances, even at a reduced speed.
Plaintiff makes a similar effort to show that defendant's negligence in failing to blow his horn was a proximate cause of the accident as a matter of law. We do not think this can be sustained. The horn would warn plaintiff of defendant's approach but the defendant's lights had already done that. The horn could not add anything to plaintiff's knowledge of defendant's presence, which presence plaintiff disregarded when he entered Highway 51.
Since we find that the answers to questions concerning causal negligence are supported by evidence and the reasonable inferences to be drawn from the evidence and that there was no error in the trial court's refusal to instruct as requested, the comparison of causal negligence as found by the jury must be upheld. It follows that the judgment must be affirmed.
By the Court. — Judgment affirmed.