Deignan v. New Amsterdam Cas. Co.

• Decision Date: 07 January 1958
• Citation: 87 N.W.2d 529,2 Wis.2d 480
• Parties: Clara DEIGNAN et al., Respondents, v. NEW AMSTERDAM CASUALTY CO. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 529

87 N.W.2d 529

2 Wis.2d 480

Clara DEIGNAN et al., Respondents, v. NEW AMSTERDAM CASUALTY CO. et al., Appellants.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Frank L. Morrow, Eau Claire, for appellants.

Wilcox & Sullivan, Eau Claire, for respondents.

BROWN, Justice.

Appellants submit that Patricia is absolved as a matter of law from negligent management and control because she was confronted by a sudden emergency to which she had not contributed, citing Johnson v. Prideaux, 1922, 176 Wis. 375, 187 N.W. 207, 208:

'* * * 'an automobile driver, who by the negligence of another * * * is suddenly placed in an emergency * * * is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice.' * * *'

And Frankland v. De Broux, 1947, 251 Wis. 210, 28 N.W.2d 256, 259, where we said:

'* * * Bauman was confronted with an emergency * * *, to which no act on his part contributed. He cannot be charged with negligence as to control merely because he did not stop his truck, if he could have stopped it, or did not turn farther to the right if this was possible, when he took the course which on the spur of the moment seemed to be the only thing he could do to avoid the impending collision.'

There are at least two burdens which appellants must carry before the emergency doctrine is available to them. They must convince the trier of the fact that an emergency developed so suddenly and unexpectedly that there was no time for considered action; and that no act or failure to act by the person who claims the protection of the doctrine contributed to produce the emergency.

Patricia's testimony on the accident was (summarized):

'I started going into the turn, cutting across the highway, and as I seemed to have the car quite level diagonally across the highway, I noticed lights coming up on my left as though they were going to hit me. I then increased my rate of speed. I thought I could make the turn. I went to the shoulder on the turn of the road and that pulled me into the ditch. When the car came to a stop, I was about fifteen to twenty feet off of Highway No. 64. The vehicle from behind gave me no audible signal of any kind. I did the best I knew how in making that left turn.

'When I observed the truck behind me, when I started to make the turn, I thought I would have time to turn and get out of the way. When I speeded up to get out of the way of the truck that was behind me, I thought I could keep my car under control, and I thought I could...