Haight v. Luedtke

• Decision Date: 13 January 1942
• Citation: 239 Wis. 389,1 N.W.2d 882
• Parties: HAIGHT v. LUEDTKE et al.
• Court: Wisconsin Supreme Court

239 Wis. 389

1 N.W.2d 882

HAIGHT

v.LUEDTKE et al.

Supreme Court of Wisconsin.

Jan. 13, 1942.

Appeal from a judgment of the Circuit Court for Marathon County; Herman J. Severson, Judge.

Action by Geraldine Pagenkopf Haight against Herbert C. Luedtke and others, for injuries sustained in an automobile collision, wherein a cross-complaint was filed. From an adverse judgment, defenants William C. Haight and the Standard Surety & Casualty Company of New York appeal.-[By Editorial Staff.]

Affirmed.

This was an action commenced by the plaintiff-respondent on the 17th day of April, 1941, against the defendants. Herbert C. Luedtke and Workmen's Mutual Insurance Company, his insurance carrier, William C. Haight and Standard Surety and Casualty Company of New York, his insurance carrier, for damages resulting from personal injuries sustained in an automobile collision on the 16th day of March, 1941, between the automobile owned and operated by the defendant, William C. Haight, in which the plaintiff was a guest, and an automobile owned and operated by the defendant, Herbert C. Luedtke. Defendant Luedtke cross-complained against defendant Haight and his insurance carrier for his personal injuries, damage to his car, his medical bills, and loss of society and companionship of his wife who was injured in said collision. Defendant Haight cross-complained against defenant Luedtke and his insurance carrier for damage to his automobile; also joined his insurance carrier in a prayer for contribution.

Case was tried to the court and jury. The jury found defendant Haight causally negligent as to speed and as to lookout and control of his automobile. The jury found no negligence on the part of the defendant Luedtke. The jury further found no negligence on the part of plaintiff and that she did not assume the risk of her host's negligence under the facts and circumstances as disclosed by the evidence. The usual motions were made after verdict. The court gave plaintiff the option to remit any sum in excess of $1,300, plus doctor bills, in lieu of a new trial. Plaintiff exercised this option and on July 17, 1941, judgment was entered in favor of plaintiff against defendants Haight and the Standard Surety and Casualty Company for $1,524.57 damages and costs, and in favor of defendant Luedtke on his cross-complaint in the sum of $389.46 damages and costs. The judgment further dismissed the cross-complaint of defendant Haight and the Standard Surety and Casualty Company for Haight's damages and contribution. Plaintiff's complaint against defendant Luedtke and the Workmen's Mutual Insurance Company was dismissed with costs. The defendant Haight and the Standard Surety and Casualty Company of New York appeal. The material facts will be stated in the opinion.

Genrich & Genrich, of Wausau (Herbert L. Terwilliger, James A. Fitzpatrick, and William J. Hoffmann, all of Wausau, of counsel), for appellants.

Bird, Smith, Okoneski & Puchner, of Wausau (Richard P. Tinkham, Jr., of Wausau, of counsel), for defendants and respondents.

Boileau & Loeffler, of Wausau, for plaintiff and respondent.

MARTIN, Justice.

Appellants contend that the court erred in denying their motion for a nonsuit; in denying their motion for a directed verdict; in denying their motions after verdict to change the answers as returned by the jury. Appellants argue that plaintiff, as a matter of law, assumed the risk and was also guilty of contributory negligence, and that defendant Luedtke was guilty of negligence as a matter of law.

The facts are not much in dispute. It appears that on Sunday morning, March 16, 1941, at approximately the same time, the defendant Luedtke, accompanied by his wife and mother, left Wausau to visit his father who was confined in a hospital at Marshfield; and defendant Haight, accompanied by Miss Pagenkopf (now his wife), left Wausau to go to his home in Marshfield for dinner. In making their journey from Wausau to Marshfield, both cars traveled west on highway 29 to a point approximately 20 miles west of Wausau where said highway is intersected by highway 97, which runs in a northerly and southerly direction. It was a stormy day, the wind from the west blew snow upon the highway. However, neither car experienced any difficulty in traveling west on highway 29. No particular hazard was encountered until after the cars had turned south from the intersection on highway 97. The wind, being from the west, caused snowbanks to form at certain places extending across highway 97 which made driving difficult and obstructed vision to the south. There is some conflict in the evidence as to the distance south of the intersection to the point where the collision occurred. The Luedtke car traveled some distance ahead of the Haight car all the way from Wausau to where the collision occurred. From Wausau to the intersection of highways 29 and 97 Haight drove between 40 and 45 miles per hour. As he reached the intersection and turned south plaintiff noticed the blanket of snow accumulating across highway 97. She cautioned him to “be careful”. He continued at about 25 miles per hour for approximately 300 feet. He then reduced the speed to about 20 miles per hour. With the speed so reduced, he ran into a blanket of snow which had accumulated across highway 97. He traveled a further distance of approximately 75 feet in this blanket of snow and came into collision with the rear of the Luedtke car which was stopped at that point. As Haight's car encountered this snowdrift his vision to the south was almost entirely obscured. It appears to be conceded that for some time preceding the date in question the brakes on his automobile were in a defective condition, of which fact plaintiff was unaware and learned of it some time after the accident.

The impact of the Haight car pushed the Luedtke car a distance of 25 to 30 feet from the point at which it stood when struck. Haight testified: “I would say we drove into the snow blanket about seventy-five feet before we had the collision. During that seventy-five feet there was a constant blanket of snow with the exception of just before we hit there was a little clear clear space and I saw the car (Luedtke's) sitting there.”

The Haight car traveling at 20 miles per hour would cover a distance of 75 feet in two and one-half seconds.

Mr. Luedtke testified that after he had turned onto highway 97 he brought his car to a stop about 50 feet from the intersection to observe driving conditions; that he stopped there for about two minutes and then noticed that visibility had cleared; that he could then see between 300 and 400 feet to the south on highway 97 and decided to drive on. He further testified that his visibility to the south became obscured at a point between 300 and 400 feet south of the intersection; that as he entered the veil of snow it was thin and he was able to see 30 to 40 feet ahead of his car; that finally visibility ceased entirely and he was forced to bring his car to a stop; that he did bring it to a stop on his right-hand edge of the road.

Mr. Haight testified that he did not know he was getting into a thick cloud of snow until he was actually in it. We find no testimony as to the depth of the snow on the traveled portion of highway 97. It appears that prior to the date in question the snow had been plowed out. The concrete surface was 20 feet in width with a clear shoulder on the east side between 5 and 6 feet in width. When the collision occurred the Luedtke car was standing with its left wheels between 3 and 4 feet west of the center line of the highway, thus leaving a passage for other vehicles of at least 18 feet on the east side of the Luedtke car. It appears that other cars ahead of the Luedtke car had gone through the blanket of snow at the point in question. Mr. Luedtke brought his car to a stop with the intention of getting out for the purpose of determining whether he should proceed farther or turn back. He had just opened the door of his car to get out when his car was struck by the Haight car.

It is of no particular importance whether this collision occurred 400 or 500 feet south of the intersection. The important fact bearing on Mr. Haight's negligence and the plaintiff's assumption of risk and contributory negligence is the distance that Haight drove into the snowdrift after his vision became totally obscured. In this connection it is important to note that appellants do not attack the jury's findings as to Haight's negligence. The plaintiff testified that she appreciated the danger in driving through the veil of snow being blown across the highway. Obviously, for that reason she cautioned Mr. Haight to “be careful”. Thereafter, he did proceed for a distance of several hundred feet at a speed of 25 miles per hour, later reduced to 20 miles per hour. The Haight car traveled the total distance from the intersection to the point of the collision in about 12 seconds. After Haight got into the thick cloud of snow which totally obscured his vision, he drove a distance of 75 feet, which distance at 20 miles per hour would be covered in two and one-half seconds. In Bryden v. Priem, 190 Wis. 483, 485, 209 N.W. 703, 704, the court said: “It is claimed that because the plaintiff, D. C. Bryden, did not protest against the unlawful rate of speed at which defendant was driving during the quarter of a mile just prior to the accident, occupying about 25 seconds in time, he is guilty of contributory negligence as a matter of law. This is asking for an extreme, if not absurd, application of the doctrine. * * * We are not prepared to say that acquiescence...