Day v. Pauly

• Decision Date: 10 February 1925
• Parties: DAY v. PAULY.
• Court: Wisconsin Supreme Court

186 Wis. 189

202 N.W. 363

DAY

v.PAULY.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Appeal from Circuit Court, Washington County; C. M. Davison, Judge.

Action by James B. Day against Peter Pauly. Verdict for defendant. From an order setting aside the verdict and directing a new trial, defendant appeals. Reversed with directions.

This action was brought to recover damages sustained in an automobile collision, which occurred on June 11, 1923, near the intersection of highways 15 and 55. State highway 55 runs north and south; state highway 15 runs east and west. There is a concrete way 18 feet wide on both highways. The northwest and southwest corners of these highways are rounded by the aid of concrete aprons or curbs. The base of the apron at the northwest corner is 77 feet wide and the other side, which is at right angles to the base, is 70.3 feet long. The concrete aprons are curved, drawn to approximately a radius of 78 feet. The view at the northwest corner is obstructed for 100 feet either way by trees and shrubbery. The plaintiff driving a Twin-Six Packard car easterly on highway 15 intended to make a left turn and go north on highway 55. The defendant approached the intersection of the highway from the north in a Ford coupé and intended to proceed southward. When the plaintiff made his left turn, he did not pass to the right of the center of the intersection but cut the corner. The track of his car at the point nearest to the center of the intersection was 28 feet. For purposes of illustration there is reproduced here a plat of the intersection of the two highways (Defendant's Exhibit 1):

IMAGE

As the plaintiff made the turn substantially as indicated by the line H I upon the plat, the defendant coming from the north became confused, finally turning his car to the easterly side of highway 15, where the two cars came into contact.

The jury found that the defendant Pauly was free from negligence as to speed, and in respect to turning his car to the left just previous to the time of the collision found the plaintiff guilty of contributory negligence, and in response to question 5, as to damages, answered, “None.” Upon motions after verdict, the trial court was of the opinion that he had not properly instructed the jury; basing his conclusion in that respect on the case of Bertschy v. Seng, 181 Wis. 643, 195 N. W. 854, where the court said:

“With proper instructions as laid down in the Bertschy v. Seng case, the jury might find that defendant failed to exercise ordinary care and might also find that the plaintiff was not guilty of contributory negligence, and the court feels that with proper instructions given to the jury as to the absolute right of way as to vehicles approaching each other at an intersection that the whole verdict of the jury might be changed.”

From the order setting aside the verdict and directing a new trial, costs to abide the outcome of the action, the defendant appeals.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

J. H. Schnorenberg, of Hartford, for respondent.

ROSENBERRY, J. (after stating the facts as above).

It is the contention of the defendant: (1) That the trial court was in error in directing a new trial upon the sole ground that the court's instructions as to the right of way were not sufficiently specific, such action being based upon an erroneous view of the law; and (2) that plaintiff was guilty of contributory negligence as a matter of law, which proximately contributed to produce the injuries complained of. With respect to the first contention of the defendant, the court instructed the jury as follows:

“Every driver of an automobile at a highway crossing has the right of way over any other driver approaching him on left. The possession of the right of way by a driver over another driver approaching from the left on an intersecting highway does not justify the possessor in plunging ahead regardless of consequences nor justify or excuse his failure to use ordinary care to avoid injury to others. Even though a person has the...