Ashley v. American Auto. Ins. Co.

• Decision Date: 05 February 1963
• Parties: Robert P. ASHLEY et al., Plaintiffs-Respondents, v. AMERICAN AUTOMOBILE INS. CO., et al., Defendants-Respondents, Marian Fehlandt et al., Appellants.
• Court: Wisconsin Supreme Court

Page 359

119 N.W.2d 359

19 Wis.2d 17

Robert P. ASHLEY et al., Plaintiffs-Respondents, v. AMERICAN AUTOMOBILE INS. CO., et al., Defendants-Respondents Marian Fehlandt et al., Appellants.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Kivett & Kasdorf, Milwaukee, A. W. Kivett and James G. Forester, Milwaukee, of counsel, for appellants.

Philip Weinberg, Milwaukee, for plaintiffs-respondents.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, Stanley Z. Dreyer, Milwaukee, of counsel, for defendant-respondent Thompson.

GORDON, Justice.

Mrs. Fehlandt's Lookout

The most significant issue on this appeal is whether Mrs. Fehlandt was free from negligence as to lookout as a matter of law. In Carstensen v. Faber (1962), 17 Wis.2d 242, 249, 116 N.W.2d 161, 164, we stated that '[w]hen a jury's findings are challenged on appeal, it is the function of this court to sustain them when there is any credible evidence which under any reasonable view supports such findings.' The jury determined that Mrs. Fehlandt was negligent as to lookout, and the trial judge affirmed this finding. We approach the question of Mrs. Fehlandt's lookout, therefore, from the standpoint of determining whether there is any credible evidence to support such finding.

Mrs. Fehlandt saw the Thompson car when the latter was stopped at the intersection. At that point, Mrs. Fehlandt was 250 feet north of the intersection and was traveling 45 miles per hour. No other vehicles or other factors were upon the scene which demanded the exclusive attention of Mrs. Fehlandt. Cf. Meyer v. Mutual Service Casualty Ins. Co. (1961), 13 Wis.2d 156, 160, 108 N.W.2d 278. The weather was clear, and both highways were paved and dry. Nothing obstructed the view of either driver.

Mrs. Fehlandt did not observe the Thompson car again until it was partly in her lane of travel and only 28 feet in front of her. She did not observe how the Thompson car got into that position. She did not see the Thompson car between the time she first saw it stopped at the stop sign on county trunk 'C' and the next time when it was hazardously in front of her on highway 45. She estimated that three or four seconds transpired between the two times that she observed the Thompson car. There was testimony by Mr. Thompson that his speed at the time of the impact was approximately 15 miles per hour. In our opinion, these circumstances created a jury issue as to whether Mrs. Fehlandt was negligent as to lookout, and there is credible evidence to sustain the jury's affirmative finding on this question.

One who travels on an arterial may rightfully rely on an assumption that his right of way will be respected. However we have specifically ruled that this does not excuse a driver who has the right of way from maintaining a proper lookout. Gibson v. Streeter (1942), 241 Wis. 600, 602, 6 N.W.2d 662. So, too, in Gaspord v. Hecht (1961), 13 Wis.2d 83, 87, 108 N.W.2d 137, we noted the dignity that must be accorded to the user of an arterial highway but went on to observe that the question of such driver's lookout in that case was for the jury.

In Wiley v. Fidelity & Casualty Co. (1958), 3 Wis.2d 320, 324, 88 N.W.2d 366, 369, we said:

'The plaintiff attempts to place too much reliance on his right to assume that no one would invade his lane of traffic where he had the right of way because he was on an arterial highway. A driver cannot rely entirely upon such an assumption.'

A similar expression is found in Reddick v. Reddick (1961), 15 Wis.2d 37, 41, 112 N.W.2d 131, 133, where this court quoted from Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis.2d 343, 348, 99 N.W.2d 163:

'Having the right of way does not relieve one of the duty of watching the road for vehicles on the highway or entering thereon.'

Our most recent comment on this facet of automobile law is contained in Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis.2d 499, 508, 117 N.W.2d 666, 671, where this court said:

'When one having the right of way sees a pedestrian or another car, he may assume the pedestrian or car will observe his right of way but if the pedestrian or car does not yield the right of way he is under a duty to manage and control his car so as to attempt to avoid the accident. But such a reliance affects primarily management and control or speed and does not affect one's duty to maintain a proper lookout.'

Mrs. Fehlandt was obliged to keep an efficient lookout, and she is not wholly relieved of that responsibility because of the fact that she was proceeding upon an arterial highway. Whether her turning in the opposite direction to watch for other traffic during the three to four second interval was negligence presented a jury question. The jury was entitled to find this conduct negligence even though the dominant cause of the ensuing collision was the negligence of Mr. Thompson.

The Housekeeper's Wages

The appellant urges that the $620 paid to a housekeeper should not have been included in the medical and hospital expenses. The parties stipulated that the trial judge should answer the questions as to medical and hospital expenses. The court awarded $2,179.81 to Dr. Ashley as compensation for his medical, hospital and X-ray expenses. In their argument, the appellants assume that the trial judge did in fact include the housekeeper's wages in the aforesaid total. The trial judge gave no itemization of the component parts of the figure which totaled $2,179.81. He labeled such amount as the total damages 'for medical, hospital and X-ray expenses.'

The record does not establish that the learned trial judge included non-medical expenses in this computation. The appellant has postulated certain arithmetical computations in connection with the medical expenses which, including the $620 housekeeper's expenses, reach the exact figure determined by the trial judge. However, the trial court did not itemize his award, and we have been unable to determine from the record before us that the $620 was in fact included in the medical expense figure.

The expense of hiring a housekeeper may properly be included in a question of a special verdict relating to damage for the loss of services and society. Atkinson v. Huber (1955), 268 Wis. 615, 622, 68 N.W.2d 447; Selleck v. The City of Janesville (1899), 104 Wis. 570, 576, 80 N.W. 944.

Future Medical and Hospital Expenses

The appellants contend that the jury's award of $1,250 for Mrs. Ashley's future medical and hospital expenses is excessive. There was evidence at the trial that Mrs. Ashley would be required to undergo surgery on her lower back. Although she lives in Ripon, she received medical treatment after the accident at a hospital in Racine. A doctor testified that the cost of the prospective surgery, if done in Racine, would be $1,500. Another doctor testified that the same operation, if done in Fond du Lac, would cost $725.

In our opinion, the figure of $1,250 as set by the jury is not rendered unreasonable by the fact that her future orthopedic attention could be obtained at a lower cost at a different hospital. There is no rule which would require Mrs. Ashley to go to the nearest hospital, especially in view of the fact that she had previously been treated at the hospital in Racine for this ailment. The appellants have cited no authority in support of their position. We do not deem it unreasonable for Mrs. Ashley to contemplate going to Racine for her future medical attention, and the jury was entitled to base its valuation on the cost of care at such hospital.

The Loss of Earnings

The respondents Ashley argue that there is error attendant to the jury's finding that Dr. Ashley incurred no loss of earnings. We agree that it was immaterial whether Ripon College actually paid Dr. Ashley his salary during the period of his disability after the accident. In Prunty v....