Blasi v. Drafz
| Decision Date | 29 November 1960 |
| Citation | 106 N.W.2d 307,12 Wis.2d 14 |
| Parties | Robert BLASI, a minor, by David L. Phillips, his gdn. ad litem, Appellant, v. Robert Edward DRAFZ et al., Respondents. |
| Court | Wisconsin Supreme Court |
Phillips & Richards, Kenosha, for appellant.
Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, for respondents.
On motions after verdict appellant moved to change the answers as to his negligence and enter judgment for the plaintiffs on the verdict as so amended. The trial court denied the motion. Appellant's position on this appeal is that the court was obliged as a matter of law to apply the emergency doctrine and absolve him of negligence.
The accident occurred at about 1:00 a. m., June 21, 1958, on Sheridan road in the city of Kenosha. Sheridan road, for some distance in both directions from the point of collision, is a three lane concrete highway, each lane being approximately ten feet wide. The pavement was dry, the weather clear.
Just prior to the accident three cars were traveling south on Sheridan road. One was the car driven by appellant Robert Blasi, with Charles P. Stone, Eugene Mecozzi and two others as passengers. Ahead of the Blasi car was an automobile owned by one William Toutant, in which Harold Grellinger was a passenger. Behind the Blasi car was the automobile driven by respondent Robert Drafz. According to Stone's testimony Drafz passed the Blasi car, cut in front of it and slammed on his brakes. Then the Drafz car began to 'fishtail,' swerving back and forth across the west lane with portions of the car invading the center lane; its brake lights were flashing. Blasi then pulled into the center lane and the cars collided, the right front fender of the Blasi automobile coming in contact with the left front fender of the Drafz automobile. Almost immediately thereafter the Blasi car collided head-on with the northbound Barchus car which was also in the center lane. The Mecozzi testimony was generally to the same effect.
There were some variations in the testimony of other witnesses as to how the accident happened, but it is apparent from the verdict of the jury that the Stone and Mecozzi testimony was the version which it accepted. Appellant contends that the passing, braking and 'fishtailing' of the Drafz car created an emergency to which Blasi, with less than six or seven seconds to act, reacted by pulling into the center lane. The evidence shows that Blasi's reaction to Drafz cutting sharply in front of him was to brake his car. The Drafz car did not begin to 'fishtail' until it was completely in the west lane and twenty feet ahead of Blasi. Yet the collision between these two vehicles occurred when Blasi drove into the center lane and brought his car abreast of the Drafz car, obviously in an attempt to pass.
The jury could well believe that any emergency created by Drafz's passing and cutting in was past before Blasi pulled into the center lane; that he was already safely behind Drafz when the fishtailing began.
No doubt the erratic movement of the Drafz car presented a situation which Blasi desired to put behind him, but in attempting to do so it was his duty to pass only after ascertaining that he could do so in safety. Sec. 346.13(2), Stats. The side-swiping between the Blasi and Drafz vehicles occurred when they were abreast of one another, Blasi in the center lane. Immediately thereafter the Blasi and Barchus cars collided head-on. Barchus testified he was in the center lane for some time, being in the act of passing two cars in the east lane. His lights were on. According to his testimony, the Blasi car came out into the center lane so quickly that he never saw it before the impact.
This court has held that before the emergency doctrine is available to a driver he must establish that the emergency developed so suddenly that there was no time for considered action and that no negligence of his own contributed to produce the emergency. Deignan v. New Amsterdam Casualty Co., 1958, 2 Wis.2d 480, 482, 87 N.W.2d 529. Appellant failed to establish these facts. Once Drafz had passed the Blasi car, Blasi had only to wait until he could determine that the center lane was free for passing. Visibility was good; the road was straight and level and there was nothing to obstruct his vision. The jury was entitled to believe that Blasi made no observation as to whether the center lane was clear before he attempted to pass the Drafz car, and that the speed at which he drove into the center lane and...
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