Anderson v. Deerwester

• Decision Date: 08 March 1960
• Citation: 101 N.W.2d 640,9 Wis.2d 428
• Parties: Sofie ANDERSON, Appellant, v. R. F. DEERWESTERN et al., Respondents.
• Court: Wisconsin Supreme Court

Page 640

101 N.W.2d 640

9 Wis.2d 428

Sofie ANDERSON, Appellant, v. R. F. DEERWESTERN et al., Respondents.

Supreme Court of Wisconsin.

March 8, 1960.

Schlotthauer & Jenswold, Madison, for appellant.

George D. Young, Milwaukee, for respondents.

BROADFOOT, Justice.

The evidence adduced by the parties with reference to the events that transpired immediately prior to the collision was in direct conflict. The plaintiff testified as follows: That she was driving from Milwaukee to Green Bay to attend a birthday party. She was accompanied by one William Cvikota. About one and one-half miles south of the point of the collision she overtook the defendant's car which was followed by another car, the driver of which is unknown. The defendant was traveling between 30 and 35 miles per hour and she followed the two cars for some time. It was raining and her windshield wipers were operating. She decided to pass the two cars. She turned on her left directional light, blew her horn, and pulled into the west lane. She passed the first car without any difficulty, and again blew her horn. When she was within eight feet of the Deerwestern car he suddenly veered to the left, pulling out into the west lane. She tried to steer to the left to avoid him but struck his car and went off the highway.

Cvikota testified that plaintiff blew her horn before she started to pass the Deerwestern car; that the front end of plaintiff's car was approximately even with the rear wheels of the Deerwestern car when it swung sharply into the westlane without warning and the right rear of plaintiff's car collided with the left rear fender of the Deerwestern car.

The defendant testified as follows: That he was driving north on Highway 41 and planned to turn left on Highway 49 to proceed to Green Lake. His windshield wipers were working and his parking lights were turned on. It was raining slightly and the pavement was wet. When he was 1,500 to 1,800 feet south of the intersection with Highway 49 he reduced his speed and turned on his directional light indicating a left turn. When about 500 to 550 feet south of the intersection he crossed the center line into the left lane. There was no traffic approaching from the north and he did not wish to hold up traffic from the south. Some cars passed him on the right. He had traveled about 150 feet entirely in the west lane when he felt a bump. His windows were closed and he heard no horn or warning signal of any kind. Before turning into the left lane he looked to the rear and saw two cars approaching from the south in that lane. He did not look to the rear after that until after the collision. He continued to the intersection, made his left turn, and parked his automobile on Highway 49. He saw the plaintiff's car in the field 40 to 45 feet west of Highway 41. Plaintiff had been thrown out of the car and was lying on the ground. Her car was badly damaged. The damage to his automobile was to the left rear taillight and the rear of the left fender. The defendant's testimony was corroborated in many respects by that of his daughter, who was a passenger in his car.

The plaintiff is seeking a new trial because of claimed errors by the trial court and also in the interest of justice. As a basis for her contention she claims: (1) That the verdict was inconsistent; (2) that the verdict was duplicitious; (3) that a question should have been included in the special verdict as to whether the defendant was negligent in failing to yield the right of way upon signal by the plaintiff; (4) that the defendant's testimony is incredible; and (5) that respondent was negligent as to lookout as a matter of law. We shall consider these contentions in inverse order for the reason that our determination of the last three, which involve the defendant, will be important in our consideration of the other two.

For the purpose of the argument that the defendant was negligent as to lookout as a matter of law the plaintiff is willing to assume that the jury could believe that the defendant had traveled partially in the left lane for 300 to 400 feet before the collision. Plaintiff states that in deviating from one's lane of traffic or when making a legal left turn a driver must, in the exercise of ordinary care, keep a lookout to his rear. The defendant testified that he made a proper observation to the rear when he deviated to the west lane and he admitted that he did not again look to the rear.

The left-turn statute, of course, is not applicable because he was still 200 feet from the intersection where he would make the left turn when he was struck. The defendant was violating a statute in driving in the west lane the distance he testified to, and the jury found that in so doing he was negligent although his negligence in that respect was not causal. The following quotation from plaintiff's brief states her position on this point:

'* * * Thus, looking at the situation in the most favorable light possible for defendant, he was proceeding down the highway in an unlawful position without keeping any lookout to his rear. The longer time he was proceeding in this manner, the more flagrant his causal negligence becomes. That respondent could have avoided collision even though in this unlawful position, is obvious. Had he in the exercise of proper lookout seen appellant approaching or heard appellant's proper and timely horn signal, respondent could have given way, entered his proper lane and no accident would have occurred. Thus we submit that respondent's unlawful position on the highway and his failure to maintain any lookout whatsoever to his rear must be a negligent cause of the collision as a matter of law. * * *'

The assumption that the defendant could have entered the east lane of traffic had he seen the plaintiff is not warranted by the record. The defendant testified that just prior to the time he deviated from the east lane to the west lane of the highway he looked to his rear and observed 12 to 15 cars following him. He made a gradual turn into the left lane and it took him a distance of 100 to 150 feet to get from one lane into the other. After he was in the west lane two or three cars passed him on the right. The collision caused his car to veer slightly to the right. At that time there was a car just to his right in the east lane and he had to turn the wheel to the west lane. As only three or four cars had passed him on the right, there were eight to...