Dachelet v. Home Mut. Cas. Co.

• Citation: 258 Wis. 413,46 N.W.2d 331
• Parties: DACHELET, v. HOME MUTUAL CASUALTY CO. (two cases).
• Decision Date: 06 February 1951
• Court: Wisconsin Supreme Court

Page 331

46 N.W.2d 331

258 Wis. 413

DACHELET, v. HOME MUTUAL CASUALTY CO. (two cases).

Supreme Court of Wisconsin.

Feb. 6, 1951.

Byrne, Bubolz & Spanagel, Appleton, for appellant.

Everson, Ryan, Whitney & O'Melia, Green Bay, George Miller, Algoma, for respondents.

FRITZ, Chief Justice.

The collision between the car operated by Frank Englebert and the car operated by Carl Dachelet occurred shortly after midnight on November 24, 1948, on highway No. 57, which at the place of the collision was a straight, level, two-lane cement paved highway, running generally northeast and southwest. A short distance to the northeast of that place an incline began and extended for several hundred feet to the crest of a hill, and then the road curved somewhat toward the northeast. About 125 feet northeast of the place where the cars collided there was an intersection of highway No. 57 and a private driveway leading to the north to Englebert's farm. Englebert, aged 65, had been visiting his daughter and son-in-law at their tavern, and in returning to his home, he was driving northeasterly on highway No. 57. Between 10 P.M. and 12:30 A.M., Carl Dachelet drank two glasses and some more beer and three or four shots of whiskey or highballs at two taverns before driving southward on highway No. 57 to the place of the collision. Three girls, with whom he had talked at one of the taverns, and who were riding southward in a car at 35 to 40 miles per hour on highway No. 57, were passed by Dachelet at such speed that he was out of their sight over the crest of said hill at the time the collision in question occurred. Counsel stipulated there was nothing to interfere with vision between the top to the bottom of the hill on highway No. 57, and that to the southwest of the bottom of the hill it levels so that there is no interference with vision between the top of the hill and all points along the highway for some distance southwest of the scene of the accident.

Upon the cars colliding, Englebert was thrown from his car and instantly killed. At the inquest into his death, held on December 6, 1948, Carl Dachelet testified that when he got over the crest of said hill all he saw was lights which he figured were 100 feet, or maybe 200 feet, ahead of him; that when he first saw Englebert's car approaching it was on its righthand side of the highway; and that at the same time Dachelet's car was on his right side of the highway going southwestward; that he did not notice the Englebert car turning in any way; that there was not anything which called his attention to the fact that there might be an accident and he did not know why he applied his brakes; and that he was not sure that he was on his right side of the highway when the impact occurred.

However, on the trial Carl Dachelet testified that as he came over the hill he saw a dim light one half or three quarters of a mile ahead; that he did not notice whether this car was turning or whether the car's light diviated in any way, but he remembers the light was shining just about head on to him into his windshield, into his eyes; that when he traveled 150 to 200 feet further he determined that it was the right headlight of an automobile; that he is pretty sure he was on his right side of the road,--quite a ways over,--and when he noticed that light he got over a little bit more to his right. In answer, on cross examination, 'Did anything at all call to your attention the fact that Mr. Englebert was turning his car in any way,' Dachelet testified, 'The only thing I can recall was that light shining over in my eyes. That is the only thing that gave me any indication he (Englebert) was going to cross the highway.' Dachelet further testified that he turned to his right and the right wheels of his car went off the concrete and then came back onto the pavement turning slightly south; that he remembers the light in his face at that time and that is the last thing he remembers until after the accident.

There are some conflicts and confusion in the testimony of traffic officers as to where the cars stood when they came to a standstill. A traffic officer testified:

'The point that was 125 feet west of the west edge of the driveway indicates the east end of the Dachelet car. We also measured the skid marks. The only skid marks showing, from the Dachelet car. Only one side of the car went off the cement. I observed skid marks leading northeast from the position of the Dachelet car, from where the car was, for a distance of 73 feet 10 inches. I found those marks from the east towards the west from the direction Mr. Dachelet was driving and those marks started at about the center of the highway and then drifted towards the right side of the road until the right mark went off the pavement, then curved to the left or south again back on the pavement to the rear of the Dachelet car where it stood after the accident. I identified those marks as skid marks left by tires skidding on the road, and left by the Dachelet car. At the time of the accident the pavement was dry. It was cement pavement with a center line.'

There was also testimony that Englebert's car was pretty much crossways on the highway, almost facing north; and there was testimony that the front of the Dachelet car was hooked together in contact with the Englebert car so that part of the Dachelet car was to the south of the center line. The cars were hooked in front like, pretty much head on, possibly a little more of the left side was over, and the Englebert car was facing a little more north and the other car was south. After the collision Englebert's body lay completely in the north lane of the highway with the head toward the north and about one foot south of the northerly edge of the concrete, and about even with the edge of the Dachelet car. The damage to the Englebert car was all along the front end. The damage to the Dachelet car was approximately two-thirds of the front section. There was broken glass in the northerly lane of the highway northeast of or back of the Dachelet car as it stood after the collision.

In a special verdict the jury found that Englebert was causally negligent in the operation of his car, (a) by failing to keep a proper lookout; (b) by operating his car to his left and wrong side of the road; and (c) by operating his car when the lights of his car were insufficient for safe operation of the car; but that he did not negligently fail to have his automobile under proper management and control. As to Carl Dachelet the jury found he was causally negligent by failing to have his automobile under proper management and control; but he was not negligent (a) by operating his car at an excessive speed; or (b) by operating his car to his left or wrong side of the road. And the jury found that 80 per cent of the total causal negligence was attributable to Englebert, and that 20 per cent thereof was attributable to Carl Dachelet.

Appellant contends the evidence failed to establish that Englebert was causally negligent in the three respects found by the jury. That contention cannot be sustained. The only evidence in relation to the finding that Englebert was causally negligent by operating his car when his lights were insufficient for safe operation thereof was the testimony by Carl Dachelet to the following effect: That as he came over the top of the hill a very dim light was all that he could see ahead of him; that it was somewhere one half to three quarters of a mile away; that he kept on going and saw that light coming and could not make out what it was, it was only one light; that it was after going 200 or 150 feet before he could really tell what it was; that he did not know if it was a motor cycle or a car with one light; that when he got 125 to 130 feet from the light he realized the danger, that the one light shined right in his eyes; and that Englebert's right headlight was burning, and when Dachelet realized this danger he applied his brakes and pulled to his right. Appellant's claim that plaintiffs' evidence failed to establish that Englebert's lights were insufficient is based solely on the fact that in testimony by Carl Dachelet at the inquest, which was held in relation to Engleber's death, twelve days after the accident, there is the following: 'After you got over the Brussels hill,...