Ballas v. Superior Mut. Ins. Co.

• Decision Date: 07 March 1961
• Citation: 108 N.W.2d 192,13 Wis.2d 151
• Parties: Helen Gianos BALLAS et al., Plaintiffs-Respondents, v. SUPERIOR MUTUAL INSURANCE CO. et al., Appellants, John S. Ballas et al., Interpleaded Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 192

108 N.W.2d 192

13 Wis.2d 151

Helen Gianos BALLAS et al., Plaintiffs-Respondents, v. SUPERIOR MUTUAL INSURANCE CO. et al., Appellants, John S. Ballas et al., Interpleaded Defendants-Respondents.

Supreme Court of Wisconsin.

March 7, 1961.

Rehearing Denied May 2, 1961.

Goldschmidt, deVries, Hollander & Vlasak, Milwaukee, Stephen C. deVries, Milwaukee, of counsel, for appellants.

Posner & Rubin, Francis X. Krembs, Milwaukee, for plaintiffs-respondents.

MARTIN, Chief Justice.

The accident happened at about 6:45 p. m. on December 22, 1956 on West Vliet street between 24th place and 25th street in the city of Milwaukee. Both automobiles were traveling east on Vliet street.

There are three versions as to how the accident occurred. John Ballas testified he was traveling east in the center lane at about 20 miles per hour; he first saw a panel truck (laundry truck) in the lane ahead of him when it was about six or eight car lengths away; there was some traffic but it was not very heavy; the only traffic in front of him was the truck, which he thought was moving slowly; he gradually applied his brakes and when he was about 10 feet behind the truck and almost stopped, he was struck from the rear by the Junker automobile; he did not deviate from his lane at any time prior to the impact. He never saw the Junker car before the accident.

Robert Junker testified he was driving east in the lane next to the centerline of Vliet street at about 20 miles per hour; there was a car going east about one-quarter block ahead of him; there were moving cars to his right as well as a row of parked cars and there was traffic coming west, heavy traffic. He first saw the Ballas car when he was about two car lengths behind it and it was in the lane to Junker's right; he had seen the laundry truck (panel truck) from a block away. When the cars were about 14 feet apart the Ballas car turned into his lane and stopped. Junker applied his brakes but did not turn right or left; at the impact the Junker car was facing east and the Ballas car northeast.

Ralph Mitchell, a Christmas tree dealer, testified he was standing in front of the tree lot at the curb on the south side of Vliet street, facing north, and the accident happened directly in front of him. According to his version, the laundry truck (panel truck) was double parked; the Ballas car was parked at the curb about 20 feet behind the truck; someone got out of the car and the driver then pulled away from the curb at a northeasterly angle to get around the truck. It was hit by the Junker car as it started to pass the truck; Ballas was stopped or almost stopped; Junker was moving at about 20 miles per hour.

The damage to the automobiles was at the left rear side, the rear bumper and fender of the Ballas car and the right front of the Junker car.

The jury found that just prior to the collision Ballas was not pulling away from the curb but traveling east on Vliet street. It found that he deviated from his lane of travel and that such deviation constituted causal negligence. It found Junker negligent as to lookout and management and control but found that neither was causal. The trial court held:

'It is the Court's decision that the negligence of the defendant Junker as to lookout was causal, that the jury should have so found, and compared the negligence of Junker with that of Ballas. It is the decision of the Court that the judgment be reversed, that the verdict is contrary to law and to the evidence, and the case will be set for a new trial.'

It is respondents' position that this appeal is...