Cherney v. Simonis

• Decision Date: 04 February 1936
• Citation: 265 N.W. 203,220 Wis. 339
• Parties: CHERNEY v. SIMONIS ET AL.
• Court: Wisconsin Supreme Court

220 Wis. 339

265 N.W. 203

CHERNEY

v.SIMONIS ET AL.

Supreme Court of Wisconsin.

Feb. 4, 1936.

Appeal from a judgment of the Circuit Court for Wood County; Byron B. Park, Judge.

Affirmed.

Action to recover for personal injuries sustained in an automobile collision by Henrietta Cherney against Gregory Simonis and others. From a judgment entered May 22, 1935, in favor of the plaintiff and against Simonis and his insurer, the latter appeal.

Isadore Zynda was traveling east on a paved road following in an automobile an automobile driven by Gregory Simonis. The plaintiff Henrietta Cherney, a minor, was riding with Simonis. A collision occurred at a road intersection while Zynda was attempting to pass Simonis and Simonis was turning left on the intersecting road. The plaintiff was injured and sued both drivers and the insurers of the respective automobiles, and Oberweiser, the employer of Zynda, on whose business Zynda was alleged to be engaged. The Plover Paper Company, as owner of the Zynda car, was also made a defendant. The jury found Zynda negligent (1) as to speed; (2) as to lookout; and (3) in passing at an intersection; and found Simonis negligent (1) as to lookout; and (2) for turning north when he ought to have known Zynda was in dangerous proximity. The plaintiff was found not negligent. Her damages were assessed at $15,000. Pursuant to a settlement agreement the action was dismissed as against all defendants but Simonis and his insurer. The court considered the award of damages excessive, considered $10,000 as the least amount a jury might properly award, and gave the plaintiff the option to accept judgment for that amount or stand a new trial. The plaintiff accepted judgment for that amount, and judgment therefor was entered against Simonis and his insurer. Such other facts as are material are stated in the opinion.Richmond, Jackman, Wilkie & Toebaas, of Madison, and Goggins, Brazeau & Graves, of Wisconsin Rapids, for appellants.

C. E. Briere, of Wisconsin Rapids, for respondent.

FOWLER, Justice.

The appellants contend that the court erred (1) in not holding as matter of law that Simonis was not negligent; (2) in submitting a question of the verdict in an improper form; and (3) in not holding as matter of law that the plaintiff was guilty of contributory negligence.

(1) The bases of this contention are that as section 85.16 (6) Stats. prohibits the passing at a road intersection of an automobile traveling in the same direction as the automobile passing; that Simonis in turning left might therefore rightly presume that the driver of a following automobile would not attempt to pass him at the intersection; and that he therefore owed no duty to look out for Zynda or to ascertain whether it was dangerous on account of Zynda's proximity to make the turn north.

The evidentiary facts bearing particularly upon the negligence of Simonis as the jury might properly find them to be are that it was 10 o'clock at night in May and the headlights of both cars were burning. Zynda's lights reached 300 or 400 feet ahead. Simonis had noticed in his rearview mirror that a car was on the road behindhim, but had not noticed its speed or distance behind. Simonis was not familiar with the road and was traveling about 20 miles per hour. He was looking for a crossroad he was intending to turn north upon which led to a dance hall to which he and two girls with him were going to attend a dance. He had shortly before started to turn north, mistaking a farm driveway for the crossroad, and had been corrected by Henrietta who knew the road and had told him that the turn to take was the next one to the left. This turn was 300 feet ahead of the farm entrance. At the time Simonis was approaching and making the turn Henrietta was reaching into the side pocket of the car immediately at her right for some chewing gum, which Simonis had told her was there. Simonis had discovered the road, however, and as no cars were approaching from the east he started to make the turn. He testified that he looked in the mirror but saw no car behind. He did not look to his left. He discovered the crossroad timely and started a gradual turn before reaching the intersection. The place of the accident was a short distance east of a village, and the road was straight and level. When Zynda left the village Simonis was about 300 feet ahead of him. Zynda was traveling at least 45 miles per hour as he overtook Simonis and as he turned out to pass him he increased his speed to at least 50 miles per hour, and the jury might properly infer that he was going much faster. Zynda blew his horn three or four times, but the occupants of the other car did not hear it. Simonis gave no signal of his intention to turn left on the crossroad. The three occupants of his car were in the same seat, the other girl between Simonis and Henrietta. Zynda started to turn out to pass when about 50 feet from Simonis, who had nearly reached the north edge of the pavement with the rear of his car when the collision occurred.

[1][2][3] From these facts we are of opinion that the questions of the verdict as to the negligence of Simonis were clearly for the jury to decide and their answers thereto cannot be disturbed. It was certainly the duty of Simonis to look to his left for approaching traffic from the north on the crossroad, and had he done so he must have observed the lights from Zynda's car in turning out to pass him. This would have disclosed the dangerous proximity of Zynda's car and of itself justifies the findings of the jury objected to. Section 85.16 (2), Stats. provides that a driver in a roadway must...