Bentzler v. Braun

• Decision Date: 11 April 1967
• Citation: 149 N.W.2d 626,34 Wis.2d 362
• Parties: Janet BENTZLER, Respondent, v. Herbert G. BRAUN, Northwestern National Insurance Company of Milwaukee, Douglas Bergstrom and Milwaukee Mutual Insurance Company, Appellants, Melvin J. Klimmer, Defendant.
• Court: Wisconsin Supreme Court

Page 626

149 N.W.2d 626

34 Wis.2d 362

Janet BENTZLER, Respondent, v. Herbert G. BRAUN, Northwestern National Insurance Company of Milwaukee, Douglas Bergstrom and Milwaukee Mutual Insurance Company, Appellants, Melvin J Klimmer, Defendant.

Supreme Court of Wisconsin.

April 11, 1967.

Nikolay, Jensen & Scott, Abbotsford, for respondent. Should court have directed a verdict in favor of Braun

and his insurer

CURRIE, Chief Justice.

This court on appeal is obligated to consider the evidence from a viewpoint most favorable to the respondent. ¹ As so viewed, we conclude that it was not error to refuse to direct a verdict in favor of Braun and his insurer. We have stated:

"In ruling on a motion for a directed verdict the trial court must view the evidence in the light most favorable to the party moved against and apply the following rule:

" ' "A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion." Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N.W. 405, 406; Thoni v. Bancroft Dairy Co. (1949), 255 Wis. 577, 579, 39 N.W.2d 690; Wadoz v. United Nat. Indemnity Co. (1957), 274 Wis. 383, 390, 80 N.W.2d 262.' Bruno v. Golden Bell Dairy (1961), 15 Wis.2d 106, 109, 112 N.W.2d 199, 201." ²

The jury was instructed in regard to negligence on the part of Braun in regard to lookout, management and control, and speed. If there was any credible evidence produced at trial from which the jury could properly have adduced that Braun was negligent in any of these respects, the motion for directed verdict was properly denied.

Was Braun negligent in failing to keep a lookout to the rear

The trial court instructed the jury with respect to the general duty of lookout and of lookout to the rear. The testimony shows that Braun made a proper observation of the terrain ahead of him as he approached the point where the accident occurred. If he was negligent in regard to lookout, it was for failure to make an observation to his rear. The court instructed that:

" * * * it is [his] duty * * * to exercise ordinary care to keep a careful lookout ahead and about him, and to the rear if occasion requires."

Under the state of the evidence it was not error to so instruct. There was testimony that Braun intentionally slowed down to "holler" at Bergstrom and that he reduced his speed, according to Mrs. Bergstrom, to five miles per hour. There is no dispute that a rearward observation would have revealed the approach of Klimmer. The brakes were not applied, and the brake lights were not activated to warn that Braun intended to stop or slow down. While Braun also was not faced with an emergency which required that his lookout ahead or to the side be diverted, we deem this factor standing alone would not require a lookout to the rear if the brake lights had been activated. Under these circumstances if he intended to stop or slow down appreciably, he had the duty of making an observation to the rear to see that it could be done with safety. His failure to do so was lack of ordinary care.

The facts herein are to be distinguished from those cases in which we have held that the primary responsibility of a driver is to keep a lookout ahead, for here there was no danger ahead that preempted all responsibility to following traffic.

In Statz v. Pohl, ³ Tesch v. Wisconsin Public Service Corp., ⁴ and Jacobson v. Greyhound Corp., ⁵ this court adhered to the rule applied in Thoresen v. Grything, ⁶ that:

" 'The driver of the front car owes no duty to the rear or trailing car except to use the road in the usual way, in keeping with the laws of the road, and until he has been made aware of it, by signal or otherwise, he has a right to assume either that there is no other automobile in close proximity to his rear or that, being there, it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner.' 5 Am.Jur., [Automobiles] 656, sec. 280."

In Grything, supra, both parties had a clear view of a parked car ahead on the roadway, and though Grything made no observation to the rear, he applied his brakes, which activated the rear warning lights. He slowed down abruptly because he anticipated an invasion of the road by a person getting out of the parked car near Grything's lane of traffic. In Tesch, supra, the driver, Lepak, slammed on his brakes when he anticipated that an automobile might invade his lane. In that case, supra, page 137, 85 N.W.2d page 766, we referred to the rule set forth in Wodill v. Sullivan: ⁷

"When a vehicle is equipped with brake-activated stop lights as required by statute, as soon as pressure is applied to the brakes, a signal automatically occurs indicating the driver's intention to stop or diminish speed. No other signal is required by law."

In Tesch, Lepak applied his brakes. In Statz, the child of the operator fell out of the rear door and he was obliged to abruptly apply his brakes. In Jacobson, we pointed out that an operator's exemption from a rear-view lookout was not absolute:

" * * * a driver ordinarily has no duty of maintaining a lookout to the rear unless a deviation from his course of travel or his position on the highway could reasonably create or constitute a hazard to drivers approaching from the rear." ⁸

In Mack v. Decker ⁹ we stated:

" * * * there was no requirement that Taft exercise lookout to the rear before stopping where the application of his car brakes activated the red car taillights."

The same point was at issue in the very recent case of St. Clair v. McDonnell, ¹⁰ wherein we held there was no duty of lookout to the rear when the brake lights "must have been activated."

The slowing down to five miles per hour, almost to a standstill, is as hazardous on a highway at night as coming to a dead stop, and is almost impossible to discern in the absence of a signal. ¹¹

There is evidence that Braun in the instant case did not apply his brakes, and consequently no warning was given to following traffic. Braun, with deliberation and forethought, determined to turn around, slow down, and "holler" at Bergstrom. He was confronted with no emergency; no invasion of the lane ahead required him to rely on the assumption that following traffic was proceeding at a reasonable distance and speed. Here he created by deliberation a potential hazard, and yet he made no lookout to determine that the road immediately behind him was clear of traffic that might be affected. Under these circumstances, the jury could have found that the defendant Braun was negligent in failing to keep a lookout to the rear. The trial judge properly instructed the jury in that regard.

Was Braun negligent in respect to management and control

In reference to possible negligence of Braun, the court instructed that it was the duty of the operator:

" * * * to exercise ordinary care to keep his vehicle under proper management and control to the end that when danger appears he may stop his vehicle, reduce his speed, change his course, or take such other means to avoid injury or damage as may reasonably appear proper and feasible."

We consider that such instruction was improperly given under the circumstances herein existing where Braun never saw the Klimmer car prior to impact. Complete failure to maintain a lookout makes it impossible for a driver to so manage and control his car as to avoid an accident. ¹² However, we deem the erroneous inclusion of the instruction on management and control not to have been prejudicial because we do not believe it probable that it affected the jury's comparison of negligence. ¹³

Was Braun negligent in travelling at an unreasonably slow

speed on the highway

Braun slowed down to a speed of 5 to 15 miles per hour. Mrs. Bergstrom, who was looking at Braun's car from the south side of the road a few feet away, estimated that his speed was five miles per hour. After the conclusion of testimony, plaintiff moved to amend the pleadings to allege negligence based on the violation of sec. 346.59(1), Stats.:

"Minimum speed regulation. No person shall drive a motor vehicle at a speed so slow as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or is necessary to comply with the law."

The court granted the amendment, notwithstanding objection by counsel for Braun and Northwestern National Insurance Company. Sec. 269.44, Stats., governs the right to make such amendments. It provides in part that:

"Amendments of processes, pleadings and proceedings. The court may, at any stage of any action * * * before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding * * *."

In Girtz v. Oman, ¹⁴ which involved an ultimate fact type of special verdict (the type used in the instant case), this court held that the foregoing section:

" * * * gives the trial court wide discretion as to amendment of pleadings. Grady v. Hartford Steam Boiler Insp. & Ins. Co. (1954), 265 Wis. 610, 617, 62 N.W.2d 399; Kuester v. Rowlands (1947), 250 Wis. 277, 282, 26 N.W.2d 639."

The trial court did not in this case abuse its "wide discretion" in allowing plaintiff to amend the complaint to conform to the proof.

Accordingly, the question of low speed as negligence was timely raised at trial, and the propriety of the instruction in regard thereto is before us on appeal.

The court instructed that the:

" * * * statutes * * * also provide that no person shall drive a motor vehicle at a speed so slow as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation. To comply with this statute, a driver is required to exercise ordinary care under circumstances then and there existing."

Blashfield ¹⁵ discusses the...