Bronk v. Mijal
| Decision Date | 05 March 1957 |
| Citation | 275 Wis. 194,81 N.W.2d 481 |
| Parties | Kenneth BRONK, by his guardian ad litem, Reuben W. Peterson et al., Respondents, v. Sylvester MIJAL et al., Appellants. |
| Court | Wisconsin Supreme Court |
Kivett & Kasdorf, Milwaukee, Clifford C. Kasdorf, Alan M. Clack and Bernard J Adamkiewicz, Milwaukee, of counsel, for appellants.
Quarles, Spence & Quarles, Milwaukee, Edmund W. Powell and Kurt H. Frauen, Milwaukee, of counsel, for respondents.
The issues raised on this appeal are as follows:
(1) Is there any evidence to support the finding that the defendant Sylvester Mijal was negligent as to lookout?
(2) Was the negligent speed of Sylvester Mijal such an overpowering factor in causing the accident as to prevent any failure of lookout on his part from being a proximate cause of the accident?
(3) If Sylvester Mijal was causally negligent as to lookout, did the plaintiff Kenneth Bronk assume such negligence as a matter of law?
(4) Are the defendants entitled to a new trial because of the failure of the trial court to submit a question in the verdict inquiring as to whether Sylvester Mijal operated a motor vehicle while under the influence of intoxicating liquor?
The accident occurred on a pleasant summer evening when good driving conditions, including a dry pavement, prevailed.
A deputy sheriff testified that Highway 38 as it approached the curve and bridge was posted with signs warning traffic that the speed limit on that section of the highway was 35 miles per hour. This officer further testified that at least 300 feet to the south of the curve there was a traffic sign giving warning of a sharp curve. This sign was on the right hand or east side of the highway and was visible to traffic moving northwesterly on Highway 38. The testimony is undisputed that the headlights of the Mijal car were turned on as it came out of Racine and proceeded toward the curve.
There is no testimony that Sylvester Mijal suffered from amnesia as a result of any injury sustained in the accident. Nevertheless, he claimed in his testimony given at the trial that he did not remember any of the details of the accident. However, when examined as an adverse witness, the following questions were asked him and he gave the following answers thereto:
'
The skid marks made by the Mijal car clearly give rise to the inference that Sylvester did not apply his brakes until he was 114 feet from the bridge. The curve commences some distance to the southeast of the bridge. Inasmuch as the highway sign warning of the approach of the bridge was at least 300 feet southeast of the commencement of the curve, and Sylvester should have seen such sign before drawing even with it, the jury could reasonably infer that Sylvester did not see such warning sign. This is because of his failure to take any effective action to reduce his speed until he applied the brakes hard enough to make skid marks some 200 feet after passing the warning sign. This is corroborated by the testimony of an eye witness to the accident, Ronald Schoeppe.
We deem that there was sufficient credible evidence to sustain the finding of the jury that Sylvester was negligent with respect to failing to keep a proper lookout. This brings us to that which we consider to be a crucial question on this appeal, viz., did the overpowering part played by speed in causing the accident prevent such negligent lookout from being a proximate cause thereof as a matter of law? Counsel for the defendants contend that the accident would have happened regardless of whether Sylvester had seen the curve warning sign, and irrespective of when he saw the curve itself. If counsel are correct in this contention, then obviously any negligent lookout would not have been a substantial factor in producing the accident, and, therefore, the same could not have been a proximate cause of the accident.
Parenthetically we might observe that this is one of those very rare instances when negligent lookout in a motor vehicle accident case is not necessarily a proximate cause of the accident as a matter of law. This is because the jury reasonably might infer that the speed of the Mijal car was so great that, even if Sylvester had seen the warning sign at a point where the ordinarily prudent driver would have observed it, he would have been unable to reduce his speed sufficiently to have negotiated the curve.
Defendants' brief points out that Wisconsin's Manual for Motorists, at page 22, states that the average stopping distance of an automobile traveling at a speed of 70 miles per hour is 347 feet, and the jury might well have inferred that the speed of Mijal's car as it approached the curve was in excess of 75 miles per hour. This argument overlooks the fact that it was not necessary for Sylvester to have stopped his car to have avoided the accident. All that would have been required was a reduction of speed sufficient to have enabled him to negotiate the curve. It seems to us that the question of whether Sylvester's negligent lookout was a proximate cause of the accident properly lies within the field of the jury exercising its undoubted right to draw legitimate inferences from the evidence presented. We, therefore, conclude that the jury's finding that the negligent lookout was causal should not be disturbed on this appeal.
It is further urged by the attorneys for the defendants that the plaintiff Kenneth Bronk assumed the risk of Sylvester's negligent lookout as a matter of law. Among the cases cited in support of such contention is Peterson v. Magnus, 1956, 272 Wis. 461, 76 N.W.2d 289. In that case the car of the defendant host driver was struck in the rear fender by an oncoming automobile while such defendant was in...
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