Kasper v. Kocher

• Decision Date: 01 June 1942
• Citation: 4 N.W.2d 158,240 Wis. 629
• Parties: KASPER v. KOCHER et al.
• Court: Wisconsin Supreme Court

240 Wis. 629

4 N.W.2d 158

KASPER

v.KOCHER et al.

Supreme Court of Wisconsin.

June 1, 1942.

Appeal from a judgment of the Circuit Court for Dodge County; Edward J. Gehl, Judge.

Action by Francis Kasper, administrator of the estate of Mabel Kasper, deceased, against Robert J. Kocher and others for the death of Mabel Kasper, wherein Francis Kasper and another were interpleaded as defendants. From the judgment, defendants and interpleaded defendants appeal.-[By Editorial Staff.]

Reversed and remanded with directions.

Action brought by Francis Kasper, as administrator of the estate of Mabel Kasper, deceased, against Robert J. Kocher, his employer and its automobile liability insurance carrier to recover damages sustained as the result of fatal injuries to Mabel Kasper, alleged to have been caused by Kocher's negligence in operating a truck when it collided with Kasper's automobile, in which he and his wife, Mabel Kasper, and their children were riding. Upon a trial of the issues under the pleadings, the jury returned a special verdict upon which the court entered judgment, which provided for plaintiff's recovery of damages from defendants and that they are entitled to contribution by Kasper and his automobile liability insurer for half of the amount assessed by the jury as damages for Mabel Kasper's pain and suffering and for the expenses of her funeral. Defendants appealed from the judgment.

Wilkie, Toebaas, Hart, Kraege & Jackman, of Madison (Bloomquist, Watson & Lemke, of Milwaukee, of counsel), for appellants.

Quarles, Spence & Quarles, of Milwaukee (Kenneth Grubb, of Milwaukee, of counsel), for interpleaded defendants and appellants.

Geo. A. Hartman, of Juneau (Regan & McCue, of Milwaukee, of counsel), for respondent.

FRITZ, Justice.

The defendants' principal contention on this appeal is that causal negligence on the part of Francis Kasper was greater than any negligence of the defendant Kocher; and in the latter respect defendants claim that the evidence does not admit finding that Kocher was causally negligent. In so far as necessary for the consideration of these matters, the evidence was to the following effect: At 2 P. M. on November 16, 1940, Kasper's car collided with a truck, which Kocher was driving westward on the north half of the 23 feet wide graveled roadway of county trunk highway S, at a point opposite the entrance to the highway from a private driveway to Kasper's farm buildings. Opposite the north line of that entrance, a town road entered the highway from the north at a right angle. Kocher's truck weighed 5,000 pounds and was loaded with 8,000 pounds of gravel. In approaching on S from the east, he drove at 25 miles per hour and intended to continue westward beyond the driveway entrance. When about 437 feet east thereof, he saw Kasper's car standing on his driveway, about 130 feet southeast from the entrance to S. As Kocher continued at the same speed along S, he saw Kasper's car moving on the driveway toward the entrance at 12 to 15 miles per hour, and that it was slowing down, as Kocher's view thereof became obstructed by tall bushes which were along the east side of the driveway for 15 feet south of the fence on the south line of S. These bushes extended into S for 9 feet, to within 5 feet of the graveled roadway, and also to the east on the south side of S for about 56 feet.

The only eyewitnesses of the accident, who testified on the trial, were the plaintiff Kasper, the defendant Kocher and a coemploye of his, Joseph Kuehn, who was driving eastward on S toward the driveway in another of their employer's trucks. Kasper testified that he could not remember anything that happened while he was approaching and proceeding to cross the highway, or that he was involved in the collision, but he admits that he intended to drive across S and continue north on the town road. Kuehn testified that from some distance west of the driveway he saw Kasper's car come out and enter the highway, and also saw Kocher's truck approaching, and that they were pretty close to each other; that Kasper's car did not come to a stop when he saw it and the last he saw it was “about half part” on the south side of the highway, but that because Kuehn went down hill shortly thereafter he did not see the collision. There is no evidence directly contradicting Kuehn's testimony, but plaintiff claims it is discredited by evidence that his car could not be seen in the driveway from the point where Kuehn was when he claims to have seen it. Kocher testified that as Kasper's car was approaching on the driveway it looked as if he was going to stop and was practically stopped as it got up toward the bushes which obstructed Kocher's view; that these bushes did hide the car for about a second and then Kocher saw it again right in front of him as the accident happened; that it came out all of a sudden and that he could not stop any more; that he was going upgrade when the car was back of the bushes and that when he got close to the intersection, right up to there, almost at the intersection he stepped on the gas when he was slowing down; that he did not apply his brakes or otherwise change his speed; and that he was driving on his right side of the road and did not change the course of the truck by turning to the left or right before the accident. The truck was about a foot north of the center of the graveled roadway of S when the left front wheel and bumper thereof collided with the right front fender and wheel of Kasper's car. The damage to the truck affected the control thereof and it continued westward on S for 138 feet. Kasper's car was turned westward and proceeded for 46 feet in that direction, along the left side of the truck.

In view of the proof in relation to the above and other facts, which could reasonably be inferred therefrom by the jury in relation to the speed, and control and management of the vehicles as they were approaching the intersection, and the manner in which they did so, and the opportunity of each driver to observe the approach thereto, the jury could reasonably believe that, in the exercise of ordinary care and in time to have avoided a collision, Kocher ought to have observed by keeping a proper lookout that Kasper was not going to stop at the near limits of the roadway and to yield the right of way, that therefore Kocher should have changed the speed or course of the truck in his control and management thereof, and that, because of his failures...