Johnson v. Sipe

• Decision Date: 03 February 1953
• Citation: 263 Wis. 191,56 N.W.2d 852
• Parties: JOHNSON, v. SIPE et al.
• Court: Wisconsin Supreme Court

Page 852

56 N.W.2d 852

263 Wis. 191

JOHNSON, v. SIPE et al.

Supreme Court of Wisconsin.

Feb. 3, 1953.

Rehearing Denied March 31, 1953.

Action by Laurene Johnson, administratrix of the estate of Gordon Johnson, deceased, for damages arising out of the death of Gordon Johnson from injuries received in a collision between the automobile of Donald Sipe and the motor scooter of the decedent. Judgment was entered on a jury verdict finding Donald Sipe ninety per cent negligent and decedent ten per cent negligent and from that judgment the defendants Donald Sipe and his insurance carrier, Integrity Mutual Casualty Company, appeal.

Gordon Johnson and his wife resided in the Homested Trailer Camp on the east side of Highway 41 somewhat south of the city of Appleton. The accident occurred about 9:30 p. m., July 13, 1951, on Highway 41 just north of the driveway leading to the trailer camp.

At about 9:15 that evening the decedent had left his place of employment, the Sears Roebuck store in Appleton, driving a red motor scooter which he had purchased two or three months before. Several employees who had left about the same time testified that when he drove from the store the lights on the scooter were burning. They also testified that, in addition to the tail light, which was standard equipment on the scooter, Johnson had a red reflector fastened to the rear of the machine.

After leaving the store Johnson visited the Progress Oil filing station (where he had been working from midnight till 8:00 a. m. each day) and was seen by Hyman Horwitz, operator of the station, who testified that although he did not notice particularly whether the lights of the scooter were on, he was sure they were because he would have noticed it if they had been off when Johnson drove in.

Thereafter Johnson called on Mr. and Mrs. Walter Klitzke, both of whom testified that he was carrying a flashlight in his hand. Neither saw him drive up or leave on the scooter.

Johnson then proceeded toward his home at the trailer camp. Highway 41 at the scene of the accident runs north and south, is a pavement twenty-two feet wide with a market center line and with shoulders twelve feet wide on each side. The road is level and straight; the pavement was dry.

Defendant Sipe was traveling south on Highway 41 at forty to forty-five miles an hour. His wife was a passenger in the car. Shortly before the collision occurred he noticed a car approaching from the south and dimmed his lights. He testified he was 'blinded to a certain extent. I don't know how much. The lights, to me, were bright.' But he did not reduce his speed. He said he was a poor judge of distances and that his estimates might be wrong. He noticed an object which appeared to be a red box in his lane of travel when he was about thirty-five feet from it. He jammed on his brakes, but made no attempt to turn right or left. At no time did he see a red light or reflector on the object.

It was determined after the collision that the point of impact was probably five or six feet from the center line of the highway in the west lane of travel, and somewhat north of the driveway leading to the trailer camp. The scooter, caught under the front bumper of the car, was carried along some seventy feet before the car came to rest. The traffic officer called to the scene testified that two small pieces of red glass were found, one of which was later identified as having come from the tail light of the scooter, and that a flashlight, still burning, was found somewhere near the scene of the accident. Another witness testified that he saw the flashlight at the side of the road, that someone picked it up and that it had been run over by traffic. From the condition of the scooter after the accident it apparently was hit on the right rear side. The gas line and the wire from the motor to the tail light were severed at about the same point.

The record shows that Johnson had experienced some trouble with the lighting system of the scooter and had taken it to a battery shop for repairs four or five days before the accident. Harold Douglas, who made the repairs, testified that the scooter depended upon a magneto to make the electricity to furnish both spark and lights; that as long as the motor would run there would be lights, but that the slower it ran, the dimmer the lights would be. He also testified that the red tail light glass had enough reflectibility to be seen for 100-150 feet in the ordinary headlights of an automobile, even though the tail light itself were not burning. The witness testified that he repaired the lighting system, tested it, and that it was in good working order when Johnson took the scooter out.

Guy Arentsen was driving the automobile which approached the scene of the accident from the south. He testified that his lights were on dim when he approached the Sipe car and that Sipe dimmed his lights. Arentsen first saw the scooter when he was four or five car-lengths from it. He could just tell that it was an object in front of the approaching car. Just after that he became conscious of a light on the object 'about the size of an ordinary flashlight' located to the left of the object. The size of the light was somewhere between that of a pocket flashlight and an automobile headlight. His wife described the light as 'very weak,' not bright enough to illuminate the scooter.

Laurene Johnson testified that she was waiting for her husband at the trailer house and heard him coming; she heard the motor of the scooter running up to the time of the crash. She further testified that, so far as she knew, they owned only one flashlight and that was in their car at the time of the accident.

Stanley Chmiel and Bradford & Gabert, Appleton, for appellants.

Benton, Bosser, Becker & Fulton, Appleton (John B. Menn, Appleton, of counsel), for respondent.

MARTIN, Justice.

The jury found the appellant Sipe negligent with respect to lookout, speed and management and control, and Johnson negligent with respect to the headlight and tail light on his scooter. It is appellants' contention that there is no evidence to support the finding that Donald Sipe was negligent, but that even if there were, Johnson was at least fifty per cent negligent as a...