Behr v. Larson

• Decision Date: 07 May 1957
• Parties: Kenneth E. BEHR, Respondent, v. Jens Morris LARSON et al., Appellants. Elroy HARDER, Plaintiff-Respondent, v. Jens Morris LARSON et al., Appellants, Kenneth E. Behr, Impleaded Defendant-Respondent. Mabel NERDAHL, Plaintiff, v. Elroy HARDER et al., Defendants-Respondents, Jens Morris Larson et al., Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 157

83 N.W.2d 157

275 Wis. 620

Kenneth E. BEHR, Respondent, v. Jens Morris LARSON et al., Appellants.

Elroy HARDER, Plaintiff-Respondent, v. Jens Morris LARSON et al., Appellants, Kenneth E. Behr, Impleaded Defendant-Respondent.

Mabel NERDAHL, Plaintiff, v. Elroy HARDER et al., Defendants-Respondents, Jens Morris Larson et al., Defendants-Appellants.

Supreme Court of Wisconsin.

May 7, 1957.

Hannan, Johnson & Goldschmidt, Milwaukee, Herbert L. Wible, Milwaukee, of counsel, for appellants.

Gaynor & Hughes, Plymouth, James W. Lane, Milwaukee, of counsel, for plaintiff.

Holden & Schlosser, Sheboygan, for defendants.

BROADFOOT, Justice.

Larson left his home in Milwaukee to attend a dance at Schmit's pavilion south of the intersection of State Trunk Highway 141 and County Trunk Highway Q. His wife sat in the front seat of the car with him and two nieces and a nephew, all adults, occupied the rear seat of the car. Larson described the area around the pavilion by stating that at the south line of Highway Q and proceeding in a southerly direction the first building is a garage with a gasoline pump in front of it. South of the garage is a small empty lot. The Schmit house is located south of the empty lot, then comes the tavern, then the dance hall and then a number of motel cottages. Larson testified that he drove north on State Trunk Highway 141, a three-lane highway, from Milwaukee. About 800 feet south of the intersection with Highway Q there is the crest of a hill. After crossing the crest of the hill, and about 200 feet below it, he turned left into the center lane after giving a left turn signal with his hand and arm. His car was not equipped with directional signals. He was looking for a parking place in front of one of the buildings on the west side of the highway. He selected a parking spot next to the gasoline pump in front of the garage and turned to his left without further signal. He testified that he looked in his rear vision mirror just before making the turn but did not see the lights of the tractor-trailer unit until it was opposite his left rear wheel. The collision between the right front of the tractor and the left front of the automobile occurred immediately.

Behr had driven the tractor-trailer unit to Chicago and was on his return trip to Plymouth. His cousin was his helper on the trip and rode in the cab with him. He was traveling north on State Trunk Highway 141. His testimony is that as he came over the crest of the hill he saw the Larson automobile parked or stopped on the east side of the highway with the left wheels on the concrete and the right wheels on the shoulder. Another car was proceeding ahead of him in a northerly direction and it passed the Larson car. He testified that he signaled with his lights, blew his horn, and turned to his left into the center lane and proceeded north. As he approached the Larson car it turned suddenly to the left. He again blew his horn, flashed his lights, set his brakes and swung to his left to avoid the collision. The Larson car was spun around and after the collision it faced in a northwesterly direction. The tractor-trailer stopped a short distance north of the intersection, the tractor facing in a northwesterly direction. Following the collision the trailer jack-knifed and struck the cab with such force that Behr was thrown from the cab and the tractor wheels ran over him, inflicting serious injuries.

Prior to the accident a county traffic policeman was traveling south in the west lane of the highway. He testified that he saw the Larson car either stopped or proceeding very slowly on the east side of the highway and that he saw a car pass the Larson car and proceed north. He saw the tractor-trailer unit flash its lights and turn into the center lane and saw the Larson car turn abruptly in front of the tractor-trailer unit.

The appellants had requested two additional questions to be included in the special verdict with respect to the negligence of Behr. The first one was whether Behr was negligent with respect to keeping a proper lookout and the second to inquire with respect to his negligence in passing Larson's automobile under the conditions then existing. In connection with the passing question they also requested an instruction based on sec. 85.16(6), Stats.1951, which read as follows:

'It shall be unlawful for the operator of any vehicle to overtake and pass any other vehicle proceeding in the same direction at any steam, gas or electric railway grade crossing or at an intersection of highways unless permitted to do so by a traffic officer or upon highways which are properly marked by traffic lanes.'

The appellants contend that the court erred in failing to include those questions in the special verdict and to give the requested instruction. It is first contended that it was necessary to submit the questions because they had pleaded...