Oelke v. Earle

• Decision Date: 10 January 1956
• Citation: 74 N.W.2d 336,271 Wis. 479
• Parties: Carol OELKE, Plaintiff, v. Jane EARLE et al., Respondents, Andrew J. Maxfield, Jr., et al., Interpleaded Defendants and Appellants.
• Court: Wisconsin Supreme Court

Page 336

74 N.W.2d 336

271 Wis. 479

Carol OELKE, Plaintiff, v. Jane EARLE et al., Respondents Andrew J. Maxfield, Jr., et al., Interpleaded Defendants and Appellants.

Supreme Court of Wisconsin.

Jan. 10, 1956.

Thomas J. Regan, Milwaukee, for appellants.

James W. Lane, Milwaukee, for respondents.

CURRIE, Justice.

The appellants Maxfield and his insurance carrier contend on this appeal that there is no credible evidence to sustain the jury's finding of causal negligence as to speed on the part of Maxfield. On the other hand, the defendants Earle and American Automobile Insurance Co. maintain that it was error for the trial court not to have changed the answer 'no' to 'yes' made by the jury to the question which inquired as to whether the negligent lookout of Maxfield was an efficient cause of the collision. Inasmuch as the correction of said alleged error so raised by the defendants Earle and her insurance carrier would support the judgment appealed from, it was not necessary for said defendants to file any motion for review in order to raise such issue here. Sec. 274.12(2), Stats.; State v. Biller, 1952, 262 Wis. 472, 478, 55 N.W.2d 414; and Wegner v. Chicago & N. W. Ry. Co., 1952, 262 Wis. 402, 412, 55 N.W.2d 420, 41 A.L.R.2d 279.

Insofar as the questions raised on this appeal are concerned, the jury's answers to the comparative negligence question are mere surplusage, because if there was any causal negligence on the part of Maxfield the judgment of contribution appealed from must be affirmed. Our review of the testimony in the record leads to the inescapable conclusion that Maxfield's negligence as to lookout was causal as a matter of law. In view of this conclusion it becomes unnecessary to pass on the question raised by the appellants as to Maxfield's speed, and we can perceive of no useful purpose to be gained in discussing such issue.

Both drivers testified that immediately prior to the accident their vehicles were being operated at a speed of 20 to 25 miles per hour. At the trial Maxfield testified that he made his first observation to the right, which was the direction from which the Earle car was approaching, when he was about one-third of a block south of the intersection, but that the newspaper shack obstructed his view to the east. However, at his adverse examination he had testified that he made his first observation to the east when his truck was but ten or fifteen feet south of the south curb line of the intersection. Maxfield further testified that he made no further observation to his right or east until he was about at the center of the intersection, or a few feet south thereof, and that he did not see the Earle automobile until the moment of the collision. The front of the Maxfield truck struck the left side of the Earle automobile.

On this appeal we must accept as a verity the jury's finding with respect to Maxfield having proceeded into the intersection with the traffic lights showing green as to traffic moving on North Seventh street and red as to vehicles traveling on West Center street. However, even though Maxfield thereby...