Cook v. Thomas

• Decision Date: 24 November 1964
• Citation: 131 N.W.2d 299,25 Wis.2d 467
• Parties: Mary Ann COOK by Allen M. Ross, her guardian ad litem, and Jacob Cook, Plaintiffs-Respondents, v. Robert THOMAS, State Farm Mutual Automobile Insurance Company, Defendants-Respondents, Gerald Miller and Dairyland Mutual Insurance Company, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 299

131 N.W.2d 299

25 Wis.2d 467

Mary Ann COOK by Allen M. Ross, her guardian ad litem, and Jacob Cook, Plaintiffs-Respondents, v. Robert THOMAS, State Farm Mutual Automobile Insurance

Company, Defendants-Respondents,

Gerald Miller and Dairyland Mutual Insurance Company,

Defendants-Appellants.

Supreme Court of Wisconsin.

Nov. 24, 1964.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for defendants-appellants.

Davis, Soquet & Cherney, Green Bay, for plaintiffs-respondents.

HALLOWS, Justice.

The basic question raised by the defendant-appellants' motions for a nonsuit, a directed verdict, and finally to change the answers in the verdict, is whether Miller was entitled to the application of the emergency rule as a matter of law. The trial court in instructing the jury gave the standard emergency rule instruction, No. 1015 Wis.J.I.Civil, and in sustaining the verdict reasoned in an exhaustive 73-page opinion the jury could have reasonably found that no emergency existed and Miller was negligent in his speed and in the management and control of his auto or in the alternative that although an emergency existed Miller contributed to the emergency by his negligence as to speed and management and control and therefore deprived himself of the benefit of the rule.

There are several versions of the accident but it is at least agreed the weather was stormy, snow was blowing, the road was hard to see and slippery, and the cars were being driven with their lights on and with their windshield wipers working. Highway 41 at the scene of the accident is approximately 22 feet wide and runs generally north and south. Miller was driving south with a car preceding him some 250 feet and 9 or 10 cars following him. Thomas was proceeding north in a line of cars when his car skidded into Miller's lane.

According to Miller's version, he was driving about 30 miles per hour shortly before the accident. He stated to a traffic officer after the accident he was going about 25 miles an hour when Thomas swerved into his lane 50 to 75 feet in front of him and the collision occurred about one or one and one half seconds later while the Thomas car was still headed diagonally towards him in a northwesterly direction.

Thomas testified he was driving 20 miles an hour in his lane when his right-front wheel went off the road onto the shoulder and his car went out of control when he attempted to get it back on the road. He skidded into Miller's lane when Miller was about 300 feet distant. He unsuccessfully attempted to brake his car but it righted itself when the front wheels touched the tire tracks of the southbound lane and started back into Thomas' lane in a northeasterly direction. At this time Miller was 200 to 250 feet away.

The plaintiff Mary Ann Cook testified that immediately before the accident while she was adjusting the radio she heard Miller exclaim 'Oh no' three times and glancing up saw the Thomas car coming into their lane about 200 feet away and within four or five seconds the impact occurred. She testified Miller was traveling 15-20 miles per hour and did not brake or turn the car. Hicks who was driving behind Miller at 20 miles per hour puts Thomas' car 130-150 feet from Miller's when Thomas slid into Miller's lane, and Dr. Boville driving behind Thomas testified he was driving between 28 and 32 miles an hour and the distance between the Miller and Thomas car was about 160 feet when Thomas crossed the centerline. The testimony of the passengers in the Thomas car puts the distance between the two cars as 200 to 250 feet up to 300 feet.

The testimony in relation to the time which elapsed between the instant the emergency arose and the impact varied from Miller's of one to one and one half seconds to Dr. Boville's of three or four seconds, to Thomas' of four seconds to Mary Ann Cook's of four to five seconds. However, calculating the time-lapse on the basis of the combined various distances between the cars with combinations of their speeds produces time intervals of a maximum of 5.72 seconds as computed by Miller and a minimum of 7.8 seconds as computed by Thomas.

The application of the emergency rule rests upon the psychological fact that the time which elapses between the creation of the danger and the impact is too short under the particular circumstances to allow an intelligent or deliberate choice of action in response to the realization of danger. Prosser, The Law of Torts, 3d ed., ch. 5, p. 171, sec. 33; Kaestner v. Milwaukee Automobile Ins. Co. (1948), 254 Wis. 12, 35 N.W.2d 190; Papacosta v. Papacosta (1957), 2 Wis.2d 175, 85 N.W.2d 790; Siegl v. Watson (1923), 181 Wis. 619, 195 N.W. 867, Baird v. Cornelius (1961), 12 Wis.2d 284, 107 N.W.2d 278; Deignan v. New Amsterdam Casualty Co. (1958), 2 Wis.2d 480, 87 N.W.2d 529. This time interval may in some cases be so short that no choice of alternative action can be made. The reaction is practically instinctive or intuitive and as a matter of law there can therefore be no negligence. See Klas v. Fenske (1946), 248 Wis. 534, 22 N.W.2d 596. And, this is so for inaction as well as action. An emergency may exist in a layman's sense, Hoehne v. Mittelstadt (1948), 252 Wis. 170, 31 N.W.2d 150; Roberts v. Knorr (1951), 260 Wis. 288, 50 N.W.2d 374, which requires quick action and thinking upon the part of the driver but the time is not so short as to relieve the actor from exercising ordinary care in his reaction to the danger. Whether the doctrine should be...