Eberdt v. Muller

• Decision Date: 10 February 1942
• Citation: 2 N.W.2d 367,240 Wis. 341
• Parties: EBERDT v. MULLER et al.
• Court: Wisconsin Supreme Court

240 Wis. 341

2 N.W.2d 367

EBERDT

v.MULLER et al.

Supreme Court of Wisconsin.

Feb. 10, 1942.

Appeal from a judgment of the Circuit Court for Monroe County; R. S. Cowie, Judge.

Action by Elise Eberdt, administratrix of the estate of Harvey L. Eberdt, deceased, against Ed. Muller and others to recover damages under the death by wrongful act statute and for injury to automobile of plaintiff's decedent in an automobile collision, wherein the General Casualty Company was impleaded as defendant. From a judgment for plaintiff, the original defendants appeal.-[By Editorial Staff].

Affirmed.

Action by Elise Eberdt, as administratrix of the estate of Harvey L. Eberdt, deceased, against Henry Schotten, Jr., and others to recover damages under the death by wrongful act statute, and for injury to property of plaintiff's decedent, commenced January 20, 1941. From a judgment for plaintiff entered April 30, 1941, the defendants appeal.

The case involves a collision between a Chevrolet automobile driven by Harvey L. Eberdt, who was killed in the collision, and a truck loaded with sand driven by Henry Schotten, Jr. The vehicles will be referred to as “car” and “truck.” The defendants are Schotten, his employer, Muller, and the insurer of the truck, the Farmers' Mutual Automobile Company.

The car was eastbound on a county trunk gravelled road. The truck was approaching from decedent's right on a town road which made a dead end triangular intersection with the county trunk. The entrance to the county trunk was by two leads which left between them a sodded triangle 80 feet long at its north edge. The collision occurred where the left lead of the town road merged with the county trunk. A gouge in the road, 8 feet north of the south edge of the merged roads and 70 feet west of the west apex of the grass plot marked the place of collision. Each road was 21 feet wide. It was 45 feet at the west apex of the grass plot from the north edge of the county trunk to the south edge of the lead from the town road. The tracks of the truck showed that at the point of the gouge the left track of the truck was 5 feet 8 inches from the grass at the south edge of the merged roads. A pile of sand which had been thrown by the collision over the cab of the truck lay 80 feet west of the apex of the grass plot just outside of the north edge of the county trunk road. The collision was practically headon. After the collision the automobile stood 29 feet west of the gouge in the road. It faced north of east, and was partly on each side of the road. The truck stood facing a little south of west on the north side of the road a short distance east of the car. The land south of the county trunk and west of the town road was so covered with brush as to obstruct the vision of the two drivers as they approached the intersection. The grass plot at the intersection is at the low point of a dip of both roads. The county trunk declines towards the east as it approaches the intersection and the town road declines towards the north. The grade of each road is about 10 feet in 100.

By special verdict the jury found that as he approached the place of collision Schotten was causally negligent as to speed, management and control, lookout and position on the road; that the deceased was not negligent in any of said respects; and assessed the plaintiff's damages under the death by wrongful act statute at $8,000 for pecuniary loss and $2,000 for loss of society; and as personal representative at $650 for injury to deceased's car and $480 for doctor bill and funeral expenses.

Sanborn, Blake & Aberg and Edwin Conrad, all of Madison, for appellants.

Donovan, Gleiss & Goodman, of Sparta, for respondent.

FOWLER, Justice.

The action is brought by the administrator of the estate of Harvey L. Eberdt to recover under the death by wrongful act statute and for injuries to the automobile of the deceased who was killed in a collision of a heavily loaded truck driven by defendant Schotten coming from the south on a town road at a dead-end intersection at a sharp angle with a county trunk road on which the deceased was driving east. The principal evidentiary facts are stated preceding the opinion.

The appellants make two general claims of error: (1) that as matter of law Schotten was not causally negligent and (2) that the deceased was as matter of law contributorily negligent, because the evidence does not support the findings of the jury. They claim that if (1) be sustained the judgment should be reversed and dismissal of the complaint directed; and if (1) be not sustained and (2) sustained there must be a new trial for apportionment of negligence under sec. 331.045, Stats.

One of the findings of the jury was that Schotten was causally negligent as to being on the wrong, his left, side of the road at the time of and immediately preceding the collision. The place of the collision is definitely fixed by a gouge in the road, and so are the wheel tracks of the truck leading back from the place of collision. The jury were warranted in finding that the truck was on the south half of the road and so close to the south edge as to prevent the deceased from passing him to his, Schotten's left, either by going directly east on the county trunk or by turning down the lead of the town road. Thus the findings that Schotten was negligent and that this negligence was causal are supported by the evidence. This being so dismissal of the complaint can not be directed.

(2) The position of the gouge in the road sufficiently establishes that the deceased was on his right side of the road at the time of the collision. As to his lookout, there was no evidence as to that except the testimony of Schotten. The jury were warranted in disbelieving Schotten as to this because he falsified as to his position on the road, and because he testified that when he entered the intersection he saw the deceased coming over a hill top 250 feet west of the point of collision. At the first point at which Schotten could have seen the car of the deceased at the hill top on account of his obstructed view west, Schotten was not more than 30 or 40 feet from the point of collision, as might properly be inferred from applying a straight edge to the map in evidence of the roads drawn to scale. Schotten stated that he was travelling 20 to 25 miles per hour. A witness testified that Schotten admitted he was travelling 40 miles per hour. Thus by Schotten's testimony the deceased would have travelled six to eight times as fast as Schotten, which would have made him travel from 120 to 200 miles per hour. These figures while not exact are sufficiently approximate to warrant the jury in discrediting Schotten. The deceased could get a clear view of the county trunk road and a few feet down the town road when he arrived at the top of the lower of the two hill tops referred to in the statement of facts. Between the two hills was a dip so that his view was obstructed for a part of the distance between the two hill tops. The near hill top was 100 feet from the place of collision. Sec. 85.40 (4), Stats., required the deceased to be maintaining at this point a speed such that he could stop in half the distance he could see traffic approaching from the south. The jury might infer that his speed was proper at this point. When 25 feet from the point of collision, he could see traffic from the south 80 feet away, and that might be considered by the jury to be maintaining a proper speed. This is about as far as we can reasonably go in basing inferences as to what the situation was. To go further would be resorting to speculation rather than reason. The burden of proof of contributory negligence was on the defendants. We are of opinion that the jury...