Bachmann v. Bollig

• Decision Date: 03 May 1955
• Citation: 70 N.W.2d 216,270 Wis. 82
• Parties: Gottfried BACHMANN, Jr., et al., Appellants, v. Benjamin BOLLIG et al., Respondents, James Johnson, Interpleaded Defendant.
• Court: Wisconsin Supreme Court

Page 216

70 N.W.2d 216

270 Wis. 82

Gottfried BACHMANN, Jr., et al., Appellants, v. Benjamin BOLLIG et al., Respondents James Johnson, Interpleaded Defendant.

Supreme Court of Wisconsin.

May 3, 1955.

Action commenced by plaintiffs Gottfried Bachmann, Jr., Ruth Bachmann and Allan Bachmann, an infant minor, by Ray A. Tomlinson, his guardian ad litem, against defendants Benjamin Bolling and Rural Mutual Casualty Insurance Company, for damages arising out of personal injuries sustained in an automobile collision while plaintiffs were guests in the Bolling car. The defendants interpleaded and filed a cross-complaint against James Johnson, driver of the other car involved in the accident, for contribution and for property damage. A special verdict was returned by the jury finding Bolling causally negligent as to speed and lookout. The trial court changed the answers in those respects and entered a judgment which, among other things, dismissed plaintiffs' complaint. From that portion of the judgment plaintiffs appeal. The facts will be stated in the opinion.

Arthur, Dewa, Nestingen & Tomlinson, Madison, for appellants.

Riley, Riley & Pierce, Madison, for respondents.

MARTIN, Justice.

On the afternoon of October 11, 1953 the Bolling car, in which plaintiffs were passengers, was traveling on County Trunk Highway I in Richland county. The highway is a hilly and winding blacktop pavement between 19 and 20 feet wide with shoulders of two to two and one-half feet wide. There was no marked centerline. It was a sunny day and the pavement was dry.

Immediately before the collision the Bollig car was descending a 'fairly steep grade' (no other description in the record) in a southerly direction at a speed of 35 to 40 miles per hour. Bolling testified that he braked his car as he came down the hill and made a curve to the right, or west, at about 28 to 30 miles per hour. As he rounded the curve he observed the Johnson car approaching from the opposite direction about 150 feet ahead. He testified that he did not particularly notice Johnson's position on the highway. At a point 50 feet beyond the curve the two automobiles collided head on in the north half, or Bollig's side, of the road. At the place where the accident happened there was a deep ditch or ravine sloping down from the edge of the north shoulder.

Bachmann's testimony was that from his position on the front seat beside Bolling he saw the Johnson car at about the same time that Bollig did, and that it was between 150 and 200 feet away. He stated:

'It is a very sharp curve and probably about that time I noticed the approaching vehicle coming right out of the sun, perhaps even on the shoulder of our right hand-side because of the dust I seen. Mr Bollig was around the curve * * * and we continued, and perhaps 30 or 50 feet after we got out of the curve the impact occurred.'

The physical facts establish that the point of impact was 50 feet from the curve. Even if it could be said that Bollig's lookout was inefficient because he did not notice that Johnson was on the wrong side of the road and Bachmann 'perhaps' did, it could not have been causal since he then had hardly two seconds in which to act before the cars collided. It was thus incumbent upon the plaintiffs to show that Bollig could and should have seen the other car at a greater distance.

Plaintiffs contend that the jury could disbelieve Bollig's testimony as to seeing the Johnson car or believe that he should have seen it from a greater distance. But the record contains no evidence that the Johnson car would have been visible to Bollig before he came out of the curve. Both Bollig and Bachmann testified they saw it as they came around the curve and that it was then approximately 150 feet ahead, that distance being an estimate on the part of each. There is no testimony in the record to show that the landscape toward the southwest from above the curve would have permitted Bollig an unobstructed view of that portion of the road upon which Johnson was then traveling, nor can that fact be determined from photographs in evidence. One of such photographs shows that from above the curve the view of part of the highway extending to the west could have been obstructed by trees.

Plaintiffs compare the situation here with that in Whirry v. Rural Mut. Casualty Ins. Co., 1954, 267 Wis. 302, 306, 64 N.W.2d 841, 844, where Whirry collided head on with another car at a curve. On the question of Whirry's lookout this court said:

'The appellants call attention to testimony of the record that, in their minds, establishes that because of the curve in the road, because of a bank to his left, and because of certain trees, brush and weeds growing thereon, Whirry was unable to see the Lloyd car, and particularly its position upon the highway before he did. There is other testimony in the record which, if believed by the jury, justified its answers with respect to Whirry's lookout. There is testimony permitting the jury to infer that he could have seen the Lloyd car approaching much sooner than he did and that a driver maintaining a proper lookout could have determined the position of an approaching car upon the highway long before he did.'

Plaintiffs offered no such testimony in this case. There is no evidence from which the jury could infer anything except that Bollig saw the Johnson car as soon as it was possible for him to do so. Other cases cited by the plaintiffs are cases in which there was conflicting evidence or evidence susceptible of more than one inference, and are therefore not applicable.

Some point is made of the fact that as Bollig came out of the curve he was facing west and the sun was in his eyes; that Bachmann testified he was blinded by its rays. Bollig testified that the sun did not bother him. We cannot see any significance in this since, even though 'blinded,' Bachmann saw the Johnson car, as did Bollig, when they came out of the curve. It cannot be inferred from such evidence that Bollig's vision must have been so impaired that he should have slowed down or stopped. The situation does not come within the rule of Quady v. Sickl, 1952, 260 Wis. 348, 51 N.W.2d 3, 52 N.W.2d 134.

There being no evidence to support the jury's finding as to causal negligent lookout on the part of Bollig, the trial court properly changed the answer to that question of the special verdict.

The finding the Bollig was negligent as to speed was likewise properly changed by the trial court. Johnson was found causally negligent in being on the wrong side of the road. There is some conflict in the testimony on the rate of Bollig's speed, Bollig stating that it was 28 to 30 miles per hour as he rounded the curve, Bachmann stating he thought it was 35 to 40 miles per hour entering the curve and that Bollig 'probably had a little trouble negotiating the...