De Baker v. Austin

• Decision Date: 05 December 1939
• Citation: 233 Wis. 39,287 N.W. 720
• Parties: DE BAKER et al. v. AUSTIN et al.
• Court: Wisconsin Supreme Court

233 Wis. 39

287 N.W. 720

DE BAKER et al.

v.AUSTIN et al.

Supreme Court of Wisconsin.

Oct. 10, 1939.

Rehearing Denied Dec. 5, 1939.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

Action by Viola DeBaker by her guardian ad litem, Lillian DeBaker, and others, against Charles Austin and another. From a judgment entered February 9, 1939, dismissing the complaint the plaintiffs appeal.

The case involves an automobile collision. The defendant Austin was driving an automobile west on a three-lane highway just outside the limits of the city of Green Bay, which connected with a much travelled street. He turned left to enter a tavern parking space, ahead of a car travelling in the opposite direction driven by one Simon, who is not a party to the suit. The plaintiff Viola, a minor, who was a guest in the automobile, and her parents sue Austin and his insurer to recover their damages sustained as a result of the collision. Trial was to a jury, who found Austin not negligent as to lookout, and found that he did not “fail to use ordinary care to select an opportunity sufficiently clear so that in the exercise of ordinary care he would cross the highway without creating a situation of danger to others as well as himself likely to result in injury.” They assessed the damages of Viola at $3000 and of her parents at sums to which no objection is made. Judgment was entered upon the verdict dismissing the complaint on the merits.Allan V. Classon, of Green Bay (Richard J. Ballman, of Green Bay, of counsel), for appellants.

Everson, Ryan & Hanaway, of Green Bay, for respondents.

FOWLER, Justice.

As appears from the foregoing statement of facts the case involves an automobile collision. Austin, the defendant, turned left from a highway into a tavern parking space ahead of Simon who was approaching from the opposite direction and Simon ran into him. Simon is not a party to the action. The jury found Austin not negligent as to lookout and that he did not fail to take ordinary care to select a safe opportunity to cross ahead of Simon.

The appellants claim (1) that on the defendant Austin's own undisputed testimony he was guilty of causal negligence as matter of law, and (2) that the award of damages to the plaintiff Viola is inadequate. They urge that this court should either order the trial court to grant their motion after verdict for a new trial or their alternative motion to change the verdict to find the defendant guilty of negligence that proximately caused the plaintiff's injuries, raise the amount of damages awarded to the plaintiff Viola from $3000 to a sum deemed by the court adequate, and enter judgment for the plaintiffs on the amended verdict. It is also urged (3) that the court misinstructed the jury to the prejudice of the plaintiffs.

(1) As the point raised under the first assignment of error is that the undisputed evidence spells causative negligence of Austin as matter of law, a statement of that evidence is necessary to an understanding of our ruling on that point.

[1][2][3] The general picture involved is that Austin, a nineteen year old High School student, and three other High School students, one of them the plaintiff Viola, sixteen years old, had together attended their High School “junior prom” in Green Bay, and after midnight left in an automobile driven by Austin for a joy ride. They drove to De Pere, four miles away, and went into a roadhouse there where they stayed until after one o'clock. “There was some sloe gin ordered and there was a Tom Collins passed around,” but no other drinking. They drove back to Green Bay and when passing a roadhouse referred to as the “Zuider Zee,” someone suggested that they go in there. The car was too far past to make the turn into the driveway into the roadhouse so Austin drove on and turned the car around and started back toward the roadhouse to turn in. The road was a three lane paved road. By Austin's own testimony, which is undisputed, he saw the Simon car when he turned around. He says he thought it was two or three blocks away, but at one o'clock in the morning his idea of the distance away of the headlights of an automobile coming towards him was necessarily only a guess. Austin was then ninety feet from the tavern. He turned from the outer traffic lane into the center lane and was travelling ten or eleven miles per hour. After seeing the Simon car he looked through his rear view mirror to see if a car was coming from his rear. The time to look to his rear was then past. His time to look for cars in the rear was before turning into the middle lane of traffic into which he should not have turned without previously ascertaining that safe opportunity for so turning existed. Sec. 85.16 (2), Stats., provides: “Vehicles to keep in traffic lanes. The operator of a vehicle upon a roadway shall not deviate from the traffic lane in which he is operating without first ascertaining that such movement can be made with safety to other vehicles approaching from the rear.” There was ample room for any car coming from his rear to pass at his right in the outside lane. There was thus no occasion to look to his rear after observing the Simon car. His attention should have been to his front, from which he knew a car was approaching. He was forty feet from the tavern when he started to turn to cross the road into its parking space. He made this turn and started across the road without again looking towards the Simon car. He did not look towards the Simon car until he heard its brakes screech, and it was then only thirty or forty feet away. He was headed straight across the road with the front wheels of his car on its shoulder when the impact occurred. He had travelled eighty feet or more, the last forty at five miles per hour, before reaching the lane of the Simon car without ever looking to see where it was although he knew it was coming towards him and did not know how fast it was coming. All this by his own testimony. True he stated in his adverse examination which was before the jury: “I knew the Simon car was in city limits (when I saw it) and figured twenty-five miles per hour. He came 600 feet while I was going 90 feet; I figured that it would take him a longer time to get there, and then I would have gotten into the Zuider Zee. I saw him coming two blocks away. I knew I had plenty of time with him coming at a reasonable speed. I could have gone into the Zuider Zee had he been coming 25 miles per hour. I could not say exactly how fast he was coming.” It is claimed that the testimony above quoted was sufficient to take the case to the jury on the two questions of negligence submitted to them. We think not. Austin could not rely on his “figuring” on the probable safety of turning in front of Simon's car when a mere glance to his right before entering Simon's lane of travel would have apprised him of the danger of attempting to cross, and would have enabled him at the speed he was going to stop his car in time to avoid a collision. Only the exercise of reasonable judgment could excuse him for not again looking towards the Simon car and reliance on mere “figuring” was not the exercise of reasonable judgment. It is quite true that Simon was negligent as matter of law for exceeding the statutory speed limit which was twenty-five miles per hour at the place of collision. Even if Simon's speed was seventy miles per hour as Austin “figured” and was a proximate cause of the collision, and his negligence was greater than...