Opinion
December 2, 1952 —
January 6, 1953.
APPEAL from a judgment of the circuit court for Dunn county: KENNETH S. WHITE, Circuit Judge. Affirmed.
Frank L. Morrow of Eau Claire, for the appellant.
Donald L. Farr of Eau Claire, for the respondent.
Action commenced by plaintiff W. H. Wagner against defendant Home Mutual Casualty Company for damages arising out of a collision between plaintiff's automobile and an automobile driven by Stanley Kuhn, defendant's insured. After the testimony was taken defendant moved for a directed verdict and the court granted the motion. From the judgment dismissing the complaint, plaintiff appeals.
The accident occurred at about 10:30 a. m., February 25, 1951, at a right-angle intersection of two unnamed black-top roads within the village of Knapp, Dunn county. The weather was foggy and visibility was about one hundred feet; the road surfaces were wet.
Plaintiff Wagner testified that he approached the intersection driving east at twenty to twenty-five miles per hour. When he was about seventy-five feet from the intersection he saw the Kuhn car approaching from the south at a distance which he judged was a little farther from the intersection than he was, probably eighty feet. He thought the Kuhn car was traveling faster than he was. He stated, "I looked and saw him coming and thought I had time enough to get across." "I thought he might slow down or stop." "I figured he would slow down." He did not observe the other car again until just before the impact.
Stanley Kuhn testified that he was traveling north at ten to fifteen miles per hour approaching the intersection here involved. He did not see the Wagner car at any time, but "Just as I was going in the intersection I glanced around and just saw a flick of that car and the accident happened."
The right front bumper of the Wagner car struck the left rear door of the Kuhn car.
There was one witness to the collision, Marvin Harris, whose observation was made from the street in front of a house on the northwest corner of the intersection, not more than one hundred feet away. It appeared to him that the Kuhn car entered the intersection first.
The only question on this appeal is whether the trial court erred in granting defendant's motion for a directed verdict.
There is no evidence of excessive speed on the part of either driver.
Considering the evidence most favorable to the plaintiff, Kuhn testified that he did not see the Wagner car until the moment the vehicles collided. Wagner stated that he saw the Kuhn car when he was about seventy-five feet west of the intersection and the Kuhn car was approximately eighty feet south of it. He thought the other driver would slow down or stop and that he would have time enough to get across; so he paid no more attention to it until the collision was imminent. There is nothing in the evidence, however, to show that the Kuhn car gave any indication of slowing or stopping; plaintiff testified he judged Kuhn's speed as greater than his own at the time he made his only observation.
Furthermore, defendant's insured had the right of way, sec. 85.18 (1), Stats., and if anyone would have had reason to believe that the other would yield, it was Kuhn. In the exercise of ordinary care, plaintiff, having observed the Kuhn car approaching the intersection, should have had his car under such control as to be able to yield the right of way; he was negligent in relying on any assumption that the other driver would stop and allow him to pass.
In our opinion the trial court could reach no other conclusion than that both drivers were guilty of negligent lookout as a matter of law. The negligence of each was of the same kind and character, and a verdict finding anything other than that plaintiff's negligence was at least as great as Kuhn's in respect to lookout would have been based on speculation. The trial court properly granted the motion for direction of the verdict in defendant's favor.
By the Court. — Judgment affirmed.