Dekeyser v. Milwaukee Automobile Ins. Co.

• Decision Date: 07 January 1941
• Citation: 236 Wis. 419,295 N.W. 755
• Court: Wisconsin Supreme Court
• Parties: DEKEYSER v. MILWAUKEE AUTOMOBILE INS. CO. et al. DRISCOLL v. SAME. SULLIVAN v. SAME. WISCONSIN POWER & LIGHT CO. v. MILWAUKEE AUTOMOBILE INS. CO.

236 Wis. 419

295 N.W. 755

DEKEYSER

v.MILWAUKEE AUTOMOBILE INS. CO. et al.

DRISCOLL

v.SAME.

SULLIVAN

v.SAME.

WISCONSIN POWER & LIGHT CO.

v.MILWAUKEE AUTOMOBILE INS. CO.

Supreme Court of Wisconsin.

Jan. 7, 1941.

Appeals from Circuit Court, Outagamie County; Edgar V. Werner, Judge.

Modified and affirmed.

Actions by Anastasia Dekeyser and two other occupants of a bus against the Wisconsin Power & Light Company, owner of the bus, the insurer of an automobile with which the bus collided, and Little Chute Supply Company, owner of a truck, and its insurer, to recover for injuries sustained in the collision through alleged causal negligence of the drivers of the vehicles; cross-action by the Wisconsin Power & Light Company against the insurer of the automobile to recover for injuries to its bus alleged to have been negligently caused by the driver of the automobile; and cross-action by the insurer of the automobile against the Power & Light Company for contribution on the ground of its alleged concurring negligence. From judgments in favor of the plaintiffs against the Milwaukee Automobile Insurance Company, the Insurance Company appeals.

Paschen, the owner and driver of the automobile, was killed in the collision. The collision occurred while the Paschen car was passing the truck when the bus was coming from the opposite direction. The cases were tried together. By special verdict the jury found the driver of the bus causally negligent as to lookout, control and speed; Paschen causally negligent in the three particulars above stated and also of statutory violations for passing when the left side of the road was not free from oncoming traffic for a sufficient distance to permit passing in safety, and for passing on a curve when his view was not unobstructed for one thousand feet. §§ 85.15(1) and 85.16(5), Stats.

It was stipulated by all parties that the action be dismissed as to the Little Chute Company and its insurer. The jury assessed the comparative negligence of Paschen and the bus driver at 70% to Paschen and 30% to the other. The damages were assessed to Dekeyser, $2,500; Driscoll, $750; Sullivan, $750; and the Power & Light Company, $400. The court on motions after judgment changed the answers as to the negligence of the bus driver so as to free him from negligence and granted judgment to the plaintiffs and to the Power & Light Company on its cross-complaint against the insurer of Paschen for the respective amounts above stated, with costs and interest on the verdict to the date of judgment. On the judgments of dismissal the court awarded to the Power & Light Company as costs $100 attorney's fees and $17.52 disbursements against Dekeyser, $50 attorney's fees and $15.72 disbursements against Driscoll, and $50 attorney's fees and $21.04 disbursements against Sullivan, but denied costs to the Power & Light Company against the Milwaukee Automobile Insurance Company on dismissal of its cross-complaint.

The defendant Milwaukee Automobile Insurance Company appeals from these judgments. The plaintiff Dekeyser by motion to review asks an increase of damages as to her. The defendant Power & Light Company by motion to review asks costs against the defendant Insurance Company in its judgments of dismissal as well as against the plaintiffs. All plaintiffs by motion for review assign as error the changing of the answers as to the negligence of the bus driver and demand judgment against the Power & Light Company also. Material evidentiary facts are more fully stated in the opinion.Regan & McCue, of Milwaukee, and Evrard & Evrard, of Green Bay, for Milwaukee Automobile Ins. Co.

A. McComb, of Green Bay, for respondent Dekeyser.

Schubring, Ryan, Petersen & Sutherland, of Madison, for Wisconsin Power & Light Co.

Clem Dwyer and Allan V. Classon, both of Green Bay, for respondent Driscoll.

Evans & Merrill, of Green Bay, for respondent Sullivan.

FOWLER, Justice.

As appears from the foregoing statement the case involves a collision between a bus of the defendant Power & Light Company and an automobile that resulted from an attempt by Paschen, the driver of the automobile, to pass a truck travelling ahead of the automobile when the oncoming bus was approaching from the opposite direction. The issues on the appeal will be decided by determining (1) whether the court properly changed the jury's findings of negligence of the driver of the bus; and (2) whether the court erred in denying costs to the Power & Light Company against the insurer of the owner of the passing automobile in the judgments dismissing the complaints of the plaintiff and the cross-complaint of the insurer.

[1] (1) Treatment of this heading requires a somewhat detailed statement of the facts involved in the collision, as the findings of the jury must be sustained and judgment entered on the verdict as returned, if there is credible evidence to support these findings. The evidentiary facts are practically without dispute and the crucial question is whether these facts reasonably support the jury's conclusions of ultimate fact drawn from the evidentiary facts.

The collision occurred about 8:25 A. M. on January 17, 1938. The bus was travelling practically west and the automobile east. The road was surfaced with a concrete pavement eighteen feet wide, with adjacent shoulders approximately five feet wide on each side. The pavement was icy. The road curved to Paschen's right. The bus was travelling forty miles per hour, Paschen thirty to thirty-five miles per hour, and the truck twenty to twenty-five miles. Paschen's car was following the truck. The car passed the truck and hit it in passing. It was on the north side of the road, sluing around and out of control. It got back on the south side of the road ahead of the truck and then shot over to the north clear across the road into a snow bank across a shallow ditch north of the shoulder. The bus driver turned his bus clear to the extreme north of the ditch and ran into the car as it shot into the bank. The jury found the bus driver negligent as to lookout, management and control and speed.

There is absolutely no evidence to support the findings of the jury as to lack of control of lookout. The only question is whether the jury could find that the speed of the bus was excessive in view of the icy condition of the road; and if so could they find that the excessive speed was a cause of the collision.

[2][3][4][5] As bearing upon these questions it is without dispute that the bus had travelled at approximately the same speed all the way from Green Bay to the place of the collision, approximately forty miles. The passengers had not noticed any skidding or sluing of the bus during this distance and other curves had been negotiated without reducing the speed. The immediate curve was long and gradual and was familiar to the driver of the bus. The bus had double traction rear wheels and weighed twelve thousand pounds without any load. The ice was uniform, having resulted from the freezing of sleet during the night previous and the early morning of the day. There was thus no likelihood of the bus skidding under the existing circumstances. The driver on seeing the car attempting to pass immediately steered the bus clear off the pavement and off the shoulder clear to the north edge of the ditch, and close to a telephone pole outside the ditch, before the automobile got in front of it. This shows that the driver had complete control of the bus except as its speed might affect his ability to stop it, and control is thus comprised wholly within speed. The bus driver cannot be held bound to foresee that the driver of a car following the truck would attempt to pass the truck on a curve, and thus was not bound to maintain such a rate of speed that he could stop the bus in time to avoid a collision if he should do so. Maintaining a given rate of speed on one's proper lane of travel on a highway is not negligent as excessive unless the circumstances render it reasonably likely to result in loss of control or it is voluntarily maintained when it is reasonably to be anticipated that the lane of travel may be invaded. Paschen was palpably negligent in attempting to pass, and one driver may operate his vehicle on the assumption that other drivers will use due care in the operation of theirs, and especially that they will not violate a safety statute. The driver of the truck and the driver of the bus both estimated that the bus was one hundred seventy-five to two hundred feet away when Paschen turned out to pass. Mrs. Dekeyser, the only other witness to the occurrence, said she saw the car turn out and the bus was then a “block” away. A “block,” especially in the country is a very indefinite and elastic distance. But assuming it to mean about three hundred feet, as plaintiffs' counsel say it is on the average, the bus driver might rightly assume that the driver of a car following the truck would not attempt to pass the truck on a curve or in the face of the oncoming bus when it was unsafe to pass in view of the conditions present, even though the bus was three hundred feet away. In this situation the trial court was correct in holding as matter of law that the speed of the bus did not constitute actionable negligence in absence of the essential element of foreseeability of injury.

[6] As to lookout, the evidence is undisputed and perfectly plain that the bus driver saw the car turn out as soon as it turned. He testified he then saw it. Mrs. Dekeyser testified she then saw it. He saw it when she did, for she and another passenger then exclaimed. Even if the bus driver might by more vigilant lookout have seen the trailing car before it turned out to pass, this would not have prevented the collision. There was no occasion to act in avoidance of collision untilthe turnout occurred which alone made a collision possible, and from that time on the bus driver did all that could be done, or at least did what in the emergency his judgment...