Jewell v. Schmidt

• Decision Date: 04 June 1957
• Parties: Martha JEWELL, Respondent, v. Sylvester SCHMIDT et al., Defendants, Farmers Mutual Automobile Ins. Co. et al., Appellants. Earl W. MELLEN et al., Respondents, v. Sylvester SCHMIDT et al., Defendants-Respondents, Farmers Mutual Automobile Ins. Co. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 487

83 N.W.2d 487

1 Wis.2d 241

Martha JEWELL, Respondent, v. Sylvester SCHMIDT et al., Defendants, Farmers Mutual Automobile Ins. Co. et al., Appellants.

Earl W. MELLEN et al., Respondents, v. Sylvester SCHMIDT et al., Defendants-Respondents, Farmers Mutual Automobile Ins. Co. et al., Appellants.

Supreme Court of Wisconsin.

June 4, 1957.

Langer & Cross, Baraboo, for appellants.

D. V. W. Beckwith, Madison, for Martha Jewell.

Frank M. Coyne, Madison, for defendants-respondents.

CURRIE, Justice.

The three issues presented on this appeal are:

(1) Was Jewell entitled to the benefit of the emergency doctrine so as to absolve him of all causal negligence as a matter of law?

(2) If the foregoing question is answered in the negative, did Martha Jewell assume the risk of her husband's causal negligence as a matter of law?

(3) Was there sufficient proof established of a contract entered into between Martha Jewell and the clinic and hospital whereby she agreed to pay the unpaid balance of her medical and hospital bills, as will permit her to recover the amount of such unpaid bills from her husband and the latter's insurance carrier?

In order to pass upon the first issue it is necessary to review the pertinent evidence. For several miles on either side of the place of accident Highway 60 winds its way in a general east-west direction between the Wisconsin river on the south and the bluffs rimming the river valley on the north. At the point of the accident the bluffs are indented by a narrow north-south valley, which has a low marshy bottom with a small stream flowing through it into the river. Approaching this valley from either direction, the highway bends around the river side of the noses of the bluffs forming the east-west boundaries of this valley. The road across the mouth of the valley forms a looping 'U' shaped curve with a concrete bridge crossing the stream at a point near the bottom of the 'U', such bridge being slightly to the northwest of the exact center thereof. The collision occurred about 20 feet west of the west end of this bridge at a point where there is a considerable curve in the highway. It is a left hand curve for traffic moving westerly, and a right hand curve for east moving vehicles. There is an official highway curve sign with a recommended speed of 35 m. p. h. located at the nose of each bluff. The sign at the west bluff is approximately 400 feet west of the point of impact while that to the east was approximately 1,090 feet east of such point of collision.

The accident occurred at about 8:15 to 8:20 p. m. The sun had set that day at 7:44 p. m. and both cars had been driven some miles prior to the collision with the headlights turned on. It is undisputed that the Schmidt car crossed over the white center line of the 22 foot wide blacktop pavement about 60 feet west of the point of collision and did not again regain its proper side of the road. The right front portions of each vehicle collided with the other, and at the time of impact the left front wheel of the Jewell car was about 18 inches south of the highway centerline. After the accident the two cars were in approximately the same position as when the impact occurred except that the rear end of the Schmidt car had swung around somewhat to the north. Skid marks extended back from the rear wheels of the Schmidt car approximately 100 feet, the first 60 feet being on the north side of the highway. There were skid marks of only 8 to 10 feet extending eastward from the rear wheels of the Jewell automobile.

Schmidt was a widower sixty-nine years of age, who had left a tavern about a mile west of the scene of the accident intending to drive easterly to his home in Muscoda. He was traveling at a rate of 45 miles per hour and first saw the lights of the Jewell car across the curve and through the trees when it was approximately 1,500 feet distant. He testified that he first saw both headlights of the Jewell car when he was about six rods west of the bridge. Because of the higher speed at which the Jewell car was traveling this would mean that the Jewell automobile was more than six rods distant to the east from the west end of the bridge. Schmidt's explanation for getting over onto the wrong side of the highway is as follows:

'Q. Why did you get over on the wrong side of the road? A. Well, just naturally on a bend, you know, you naturally will.'

Schmidt claims that he was endeavoring to get his car back to the south on his proper side of the centerline of the highway when the impact occurred.

Mr. and Mrs. Jewell reside at Richland Center and had left there about 7:45 p. m. for the purpose of making a trip to Iowa to visit relatives. They were accompanied by Mrs. Jewell's little granddaughter, the plaintiff Kristine Ann Mellen. Upon arriving at the Crawford county line, Jewell reduced his speed to 55 miles per hour in order to comply with the speed limit for nighttime driving. He failed to see the curve sign with the 35 m. p. h. recommended speed limit as he rounded the nose of the bluff to enter the decline down into the valley toward the bridge, and continued his speed of 55 miles per hour up until the time of impact. He failed to see the lights of the Schimdt car until he was 125 feet away from it, and then it was already on the north side of the highway in Jewell's own lane of travel. His testimony is conflicting as to what he then did. At one place he testified to applying his brakes so as to lock the wheels and turning his car to the left to avoid the collision, and at another place he stated that he had no recollection of having done so.

At the point of collision there were guard posts erected with a cable strung between them, which posts and cable were but two feet north of the north edge of the blacktop pavement. Thus, Jewell was prevented from turning to the right to avoid the collision, and, going at a speed of 55 miles per hour, it was also impossible for him to have stopped in time to avoid the accident.

Appellants contend that the wrongful invasion by Schmidt of Jewell's lane of travel created an emergency which absolved Jewell of any causal negligence. In support of such position appellants cite Schwab v. Martin, 1938, 228 Wis. 45, 279 N.W. 699; School v. Milwaukee Automobile Ins. Co., 1940, 234 Wis. 332, 291 N.W. 311; Hoehne v. Mittelstadt, 1947, 252 Wis. 170, 31 N.W.2d 150; Roberts v. Knorr, 1951, 260 Wis. 288, 50 N.W.2d 374; Havens v. Havens, 1954, 266 Wis. 282, 63 N.W.2d 86, 47 A.L.R.2d 1; Bachmann v. Bollig, 1955, 270 Wis. 82, 70 N.W.2d 216; and Mlinar v. Olson Transportation Co., 1955, 270 Wis. 622, 72 N.W.2d 392.

Such contention overlooks the well established principle that, if one's own negligence contributes to precipitate himself into a situation where he is confronted with an emergency, he cannot avail himself of the protection of the emergency doctrine. Klas v. Fenske, 1945, 248 Wis. 534, 536, 22 N.W.2d 596; Whirry v. Rural Mut. Casualty Ins. Co., 1954, 267 Wis. 302, 308, 64 N.W.2d 841; and Metz v. Rath, 1957, 275 Wis. 12, 19, 81 N.W.2d 34. We consider that the facts in the instant case bring it squarely within this qualification of the emergency rule because of the jury's findings of casual negligence as to both lookout and speed on the part of Jewell.

However, the appellants challenge such findings of casual negligence on the part of Jewell. If appellants were correct as to their contention that the emergency doctrine applied then, of course, Jewell could not be found causally negligent as to management and control. Therefore, for the purpose of this opinion we will only consider the...