Brown v. Haertel

• Court: Wisconsin Supreme Court
• Writing for the Court: OWEN
• Citation: Brown v. Haertel, 210 Wis. 345, 244 N.W. 630 (Wis. 1932)
• Decision Date: 11 October 1932
• Parties: BROWN v. HAERTEL ET AL.

210 Wis. 345

244 N.W. 630

BROWN

v.HAERTEL ET AL.

Supreme Court of Wisconsin.

Oct. 11, 1932.

Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge. Reversed.

Action commenced on the 21st day of October, 1931, by Marion Brown against Henry Haertel and Henry Haertel Service, Inc., a corporation, to recover damages arising out of an automobile accident. From a judgment entered in favor of the plaintiff and against the defendants on the 16th day of December, 1931, the defendants appeal.Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.

Stone & Park, of Wausau (Goggins, Brazeau & Graves, of Wisconsin Rapids, of counsel), for respondent.

OWEN, J.

On the 3d day of September, 1931, the plaintiff was driving her husband's automobile in a westerly direction on highway 52 in Marathon county, Wis. While crossing county trunk highway G, a highway running north and south, her automobile collided with an automobile driven by the defendant Henry Haertel, owned by Henry Haertel Service Inc., causing the plaintiff personal injuries, for which she seeks to recover in this action.

The jury found the plaintiff free from negligence and the defendant negligent in respect of his rate of speed and in failing to yield the right of way to the plaintiff. Judgment was rendered in favor of the plaintiff on this verdict, and the defendants appeal. It is here contended that the defendant was free from negligence and that the plaintiff was guilty of contributory negligence, both as a matter of law.

In approaching county trunk highway G, the plaintiff had driven for about five miles over new concrete which had recently been laid. For some time prior, highway 52 had been closed from the easterly edge of highway G east for a distance of about five miles, and the county highway commissioner had caused to be placed at each end of this construction a so-called “road closed” sign; the sign in each instance being approximately 40 by 18 inches in size, in accordance with section 82.04 (6), Stats. This sign was present at each end of the construction work on the day in question. At the intersection of highway 52 with highway G, the sign was placed just easterly of the easterly boundary line of highway G. There were also barriers placed partly across highway 52 at this point. These barriers, however, did not extend entirely across the newly constructed concrete. The concrete was 18 feet in width, but the barriers did not extend across the northerly 7 1/2 feet. Farmers living along the highway were permitted to drive over the concrete to reach their homes. The concrete had been poured over the entire distance of the five miles, but the work had not been accepted by the county, and work on the shoulders of the road was still in progress. The work was accepted and the signs were officially removed about September 15, 1931. Earlier in the day the plaintiff had driven from Wausau to Antigo, ignoring the “road closed” sign at highway G, and proceeding over the newly constructed concrete. Upon her return in the afternoon, she likewise drove over this newly constructed concrete, also ignoring the “road closed” sign.

At the northeast corner of the intersection of highway 52 and highway G there is a store building, the front of which is 38 1/10 feet north of the center line of the concrete pavement on highway 52, and the west line of which is 55 4/10 feet east of the center line of highway G. Plaintiff testified that when she passed the store building, and at a point where she had a clear view to the north on highway G for a distance of at least 900 feet, she looked for automobiles coming from the north on highway G. She admits that she had a clear view and that there was nothing to obstruct her vision, and that, although she looked, she did not see the defendant's automobile coming from that direction. She then proceeded to cross highway G at a speed of from 10 to 15 miles an hour. When she got in the center of the traveled track of highway G, she discovered the defendant's automobile coming from the north at a speed of from 50 to 60 miles an hour. When she saw the car coming it was almost upon her. She immediately applied the brakes and stopped the car at the center of the intersection of the traveled tracks. She did this because she thought that would enable the defendant Haertel to pass either in front or to the rear of her automobile. However, the on-coming automobile crashed into plaintiff's automobile causing her personal injuries.

[1] While contention is made here that the defendant was free from negligence as a matter of law, we will dispose of this contention by simply saying that the evidence presented at least a jury question as to whether the defendant was negligent with respect to the rate of speed at which he approached this intersection and in failing to yield to the plaintiff the right of way, and the verdict cannot be disturbed in that respect.

We think it is plain, however, that the plaintiff was guilty of contributory negligence as a matter of law. When she was 58 feet distant from the point of collision she could look north on highway G a distance of at least 900 feet. Concerning this there appears to be no doubt. She herself testified that she had an unobstructed view. Photographs introduced in evidence reveal no obstruction to the view, and no reason is suggested why, if she had looked, she could not have seen the defendant's car approaching from the north.

[2][3] It is a well-settled rule of law that one circumstanced as was the plaintiff in this case will not be heard to say that she looked when, if she had...