Betchkal v. Willis, 84-016

Decision Date20 December 1985
Docket NumberNo. 84-016,84-016
Citation378 N.W.2d 684,127 Wis.2d 177
PartiesRyan R. BETCHKAL and Wisconsin Life Insurance Company, Plaintiffs-Respondents- Petitioners, v. Bernita K. WILLIS and Badger State Mutual Casualty Company, Defendants- Appellants.
CourtWisconsin Supreme Court

Matthew H. Quinn (argued), for plaintiffs-respondents-petitioners; Hand & Quinn, S.C., Racine, on brief.

John V. O'Connor (argued), for defendants-appellants; O'Connor & Warren, S.C., Kenosha, on brief.

DAY, Justice.

This is a review of a published decision of the court of appeals, Betchkal v. Willis, 122 Wis.2d 419, 363 N.W.2d 248 (Ct.App.1984), reversing a judgment of the circuit court for Kenosha county, Honorable Bruce E. Schroeder, circuit judge. The circuit court's judgment found Bernita Willis (Defendant) one hundred percent causally negligent of the collision between her and Ryan Betchkal (Plaintiff). This case raised the following issues: (1) Did the circuit court err in instructing the jury as follows: "If a vehicle turning left cannot signal its intention to turn continuously for a distance of not less than 100 feet before turning, it is required to yield the right of way to a vehicle approaching from the rear;" (2) If so, was the error prejudicial to the Defendant?

We conclude that the instruction was erroneous because the signaling statute, Section 346.34(1)(b), Stats., 1 is not applicable to the facts of this case; however, we conclude the error was harmless. We affirm in part and reverse in part the decision of the court of appeals and reinstate the judgment of the circuit court.

The questioned jury instruction stated:

"A safety statute provides that in any event an operator of a vehicle shall not overtake and pass on the left any other vehicle which by means of a signal as required by law indicates its intention to make a left turn. The signal referred to in this safety statute is a signal given continuously by either a mechanical signal device or by hand or arm for a distance not less than 100 feet before turning. If a vehicle turning left cannot signal its intention to turn continuously for a distance of not less than 100 feet before turning, it is required to yield the right of way to a vehicle approaching from the rear." (Emphasis added.)

On May 16, 1981, the Plaintiff and the Defendant were involved in a motorcycle-automobile collision less than one hundred feet south of the intersection of 27th Street and 22nd Avenue in Kenosha, Wisconsin. 22nd Avenue is a four lane thoroughfare running north and south, and 27th Street is a two lane street running east and west. The facts of the accident were in dispute.

The Plaintiff testified that he was operating his motorcycle south on 22nd Avenue in the left lane about three feet from the center line at a speed of twenty-five miles per hour. As he approached the intersection, the traffic signal controlling traffic on 22nd Avenue turned green. When he was fifty to sixty feet north of the intersection's north crosswalk, he observed the Defendant make a right turn on red into the right lane of 22nd Avenue and proceed south. The Plaintiff testified that after he had proceeded through the intersection to a point where his motorcycle was just ahead of the rear bumper of the Defendant's car, the Defendant crossed into his lane. Realizing he was confronted with an emergency, the Plaintiff accelerated his motorcycle and swerved to the left in an attempt to avoid hitting the Defendant's vehicle. However, the Defendant continued to turn left, in front of the Plaintiff, and a collision occurred at a point just left of the center line. The Plaintiff sustained serious injuries.

The Defendant's testimony contradicted that of the Plaintiff. She testified that as she approached the intersection, traveling east on 27th Street, the traffic light governing her direction was red and she stopped. When the light turned green, she turned right into the left southbound lane of 22nd Avenue. She proceeded south to a point across from the entrance to a Boy Blue restaurant, stopped, waited for two or three northbound vehicles to pass and then began her left turn. At that point, the Plaintiff struck the left front wheel of her vehicle. The Defendant contended that her left turn signal was on when she began her turn.

There was no dispute that the distance from the intersection to the point across from the entrance to the restaurant was less than one hundred feet.

At trial, the Defendant requested an instruction that precluded passing on the left a vehicle that has signaled its intention to turn left. 2 The Plaintiff requested that the instruction also incorporate this court's holding in Sparling v. Thomas, 264 Wis. 506, 509, 59 N.W.2d 433, 435 (1953) that "if a car is parked ... less than 100 feet from a crossover, the driver is unable to comply with said statutory provision [Section 85.175(1) and (2), Stats., renumbered Section 346.34(1) ] and must yield the right of way to another vehicle upon the highway." The circuit court found the Sparling decision to be controlling and instructed accordingly.

The jury found the Defendant causally negligent and the Plaintiff not negligent and awarded the Plaintiff $128.075.18 in damages. The circuit court granted the Plaintiff judgment on the verdict, but reduced the damage award to $100,000 pursuant to a prior stipulation. 3

On appeal, the court of appeals reversed, holding that the jury instruction was erroneous and that the error was prejudicial to the Defendant. It used this court's decision of Tuschel v. Haasch, 46 Wis.2d 130, 139-140, 174 N.W.2d 497, 502 (1970) for the holding that where conditions do not allow for a full one hundred feet for signaling a turn, a driver is not automatically negligent in giving the signal for a lesser distance. The appellate court interpreted Tuschel as implicitly overruling Sparling where conditions make it impossible for the turning vehicle to signal for the statutory one hundred feet. The court of appeals, in this case, ordered a new trial on the issue of liability and deferred to the discretion of the circuit court to determine if the new trial should include the issue of damages. 4

We hold that the circuit court erred when it instructed the jury on the signaling statute, Section 346.34(1)(b), Stats., because this statute is not applicable to the facts of this case. This court has determined that Section 346.34(1), is a safety statute, the violation of which constitutes negligence per se. In Grana v. Summerford, 12 Wis.2d 517, 521, 107 N.W.2d 463 (1961), this court said that "making a turn in violation of Section 346.34(1), Stats., ... is negligence as a matter of law because the section is a safety statute." See, also, American Fidelity & Cas. Co. v. Travelers Ind. Co., 3 Wis.2d 209, 212-213, 87 N.W.2d 782 (1958). (Finding that a violation of Section 85.175(1) and (2), Stats., renumbered Section 346.34(1), is negligence as a matter of law.)

"A safety statute is a legislative enactment designed to protect a specified class of persons from a particular type of harm. Walker v. Bignell, 100 Wis.2d 256, 268, 301 N.W.2d 447, 454 (1981). For the violation of the statute to constitute negligence per se, it must be demonstrated that the harm inflicted was the type the statute was designed to prevent and that the person injured was in the class sought to be protected. Id. Further, some expression of legislative intent that the statute was meant to become a basis for the imposition of civil liability must appear. Id. at 269, 301 N.W.2d at 455." Leahy v. Kenosha Memorial Hospital, 118 Wis.2d 441, 449, 348 N.W.2d 607 (Ct.App.1984).

Since a violation of a safety statute is negligence per se, the applicability of such a statute to the facts of a case must be shown "beyond a reasonable doubt, expressed in language that is clear, unambiguous, and peremptory." Burke v. Milwaukee & Suburban Transport Corp., 39 Wis.2d 682, 690, 159 N.W.2d 700 (1968); See also, Fleury v. Wentorf, 82 Wis.2d 105, 262 N.W.2d 68 (1978). Section 346.34(1)(b), Stats., provides that a signal shall "be given continuously during not less than the last 100 feet traveled by the vehicle before turning." (Emphasis added.) It is clear from the statutory language that the legislature intended this statute to apply only to situations where at least one hundred feet has been traveled by the turning vehicle. Here, it was undisputed that the Defendant traveled less than one hundred feet on 22nd Avenue. Consequently, Section 346.34(1)(b), is not applicable to this case. 5

We agree with the court of appeals' conclusion that Tuschel implicitly overruled Sparling. In Tuschel, 46 Wis.2d at 139-140, 174 N.W.2d 497, this court refused to hold the Defendant driver negligent for violating Section 346.34(1), Stats., when the uncontroverted facts were that the Defendant could not signal for a distance of one hundred feet. In Tuschel, the Defendant truck driver struck a pedestrian 6 as the driver made a right turn, at an intersection, after pulling around a parked bus. The Defendant signaled left as he started around the parked bus, and when he was at the rear of the bus he signaled his right turn. Since the bus was parked twenty to thirty feet from the corner, it was impossible for the Defendant to signal the right turn for the statutory one hundred feet. Tuschel, 46 Wis.2d at 140, 174 N.W.2d 497. The distance traveled by the Defendant, after signaling his left turn to pull around the bus, was less than one hundred feet and Section 346.34(1)(b), is not applicable to such a situation. Thus, this court correctly refused to apply Section 346.34(1)(b), in Tuschel.

In Sparling, the defendant Thomas' vehicle was parked facing south on the right hand shoulder of a four lane divided highway. The Defendant, in order to proceed north, attempted to cross two southbound lanes and the median at a crossover located approximately fifty feet...

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