Klas v. Fenske

• Decision Date: 04 June 1946
• Citation: Klas v. Fenske, 248 Wis. 534, 22 N.W.2d 596 (Wis. 1946)
• Parties: KLAS v. FENSKE et al.
• Court: Wisconsin Supreme Court

248 Wis. 534

22 N.W.2d 596

KLAS

v.FENSKE et al.

Supreme Court of Wisconsin.

April 12, 1946.

Rehearing Denied June 4, 1946.

Appeal from a judgment of the Circuit Court for Green Lake County; L. J. Fellenz, Judge.

Reversed.

Action by John C. Klas against Arthur Fenske and others to recover for injuries sustained in an automobile collision, wherein Karl Gehrung and the Badger State Casualty Company, Ltd., were interpleaded on the petition of defendantArthur Fenske who also cross-complained.From an adverse judgment, interpleaded defendants appeal.[By Editorial Staff].

Reversed, and remanded with directions.This action was begun on the 8th day of August, 1944, by John C. Klas, plaintiff, against Arthur Fenske and the Farmers' Mutual Automobile Insurance Company, defendants.Thereafter upon petition of the defendant Fenske, Karl Gehrung and The Badger State Casualty Company, Limited, were interpleaded.After the order of interpleader the plaintiff filed an amendedcomplaint setting up a cause of action against Fenske and his insurance carrier, alleged that he at the time of the accident was riding with Gehrung as a guest and invitee but did not allege that Gehrung was guilty of any negligence, asked judgment in favor of plaintiff against Gehrung if upon the trial Gehrung was found negligent; and further alleged that the negligence of the defendant Fenske was the cause of the accident and that Fenske was negligent in the following respects:

a. In driving his automobile at a negligent and careless rate of speed under the circumstances existing at the time and place of the accident.

b. In failing to keep a proper lookout for other automobiles lawfully using said highways.

c. In failing to have his car under proper control as he approached the intersection of said highways.

d. In failing to stop his automobile before entering Highway X, which was an arterial highway.

e. In failing to yield the right of way to the automobile being operated by Mr. Gehrung.

At the close of the trial, after the court had indicated the form of the verdict which was to be submitted, the plaintiff asked leave to amend his complaint so as to charge negligence against Gehrung in four respects,-speed, lookout, control and management, and right of way.While the record does not show that leave to amend was granted, judgment was directed against Gehrung in favor of Klas in accordance with the verdict and no question is raised here in regard to the pleading.So we assume that leave was granted and the judgment against Gehrung is based on the amended complaint.

Fenske answered the plaintiff's complaint, denied that he was negligent, alleged that Gehrung was negligent in five respects: (a) That the said Karl Gehrung drove his automobile at a negligent and careless rate of speed under the circumstances then and there existing; (b) That Gehrung failed to have his car under proper control; (c) That Gehrung failed to keep a proper lookout as he approached the intersection of said highways; (d) That Gehrung failed to yield the right of way to the defendant Fenske; (e) That Karl Gehrung failed to use ordinary care to apply the brakes on his automobile; and cross-complained against the defendant Gehrung for damages sustained by Fenske in the collision, and that in the event a joint judgment was rendered against Gehrung and Fenske, for contribution.Gehrung answered, denied that he was guilty of any negligence and asked that the plaintiff's complaint be dismissed as to him, and answered separately Fenske's cross-complaint, denied that he was guilty of negligence and asked that the cross-complaint be dismissed.

At the opening of the trial, the defendant Fenske and his insurance carrier moved to amend their answer by inserting therein an allegation to the effect that the plaintiff Klas and the interpleaded defendant Gehrung were engaged in a joint enterprise at the time of the accident and that any negligence of Gehrung was for that reason imputable to the plaintiff Klas.

By special verdict the jury found that Fenske was negligent as to speed, lookout, control and management, in failing to stop at the arterial highway, failing to yield the right of way, and that his negligence in each of these respects was a cause of Klas's injuries.

The jury found that Gehrung was negligent in respect to lookout, control and management and that he was not negligent with respect to speed or failing to yield the right of way; that his negligence with respect to lookout, control and management was a cause of the plaintiff's injuries; of the whole negligence causing plaintiff's injuries 70% was attributable to Fenske and 30% to Gehrung.

The court held as a matter of law that Klas and Gehrung at the time of the accident were engaged in a joint enterprise; that Gehrung's negligence was imputable to Klas.Judgment was entered in favor of Klas against Fenske and his insurance carrier for 70% of the amount of the recovery or $2,194.15, together with 70% of the costs, being $160.55.Judgment was entered in favor of Klas against Gehrung for $940.45 damages and $68.81 costs, being 30% of the damages found and the costs, including disbursements.It was further adjudged that in the event that defendants, Fenske and his insurance carrier, should pay the judgment rendered against them, they were to recover one-half of the amount so paid from Gehrung and his insurance carrier.The judgment as rendered made Gehrung ultimately liable for 65% of the recovery and Fenske and his insurance carrier ultimately liable for 35%.From the judgment so rendered, the defendant Gehrung and his insurance carrier appeal.

The facts will be stated in the opinion.

John L. Schlatterer, of Milwaukee, for appellants.

Reilly & Cosgrove, of Fond du Lac, for defendants and respondents.

Hill, Beckwith & Harrington, of Madison, for plaintiff and respondent.

ROSENBERRY, Chief Justice.

The facts in this case can be best understood by reference to a map, Exhibit 1.

IMAGE

The accident occurred on March 6, 1944, about ten o'clock a.m., at the intersection of County Trunks X and O, in Green Lake County, County Trunk O a gravel road twenty feet in width, running north and south.County Trunk X is a black top arterial highway running east and west and is practically level.There is a sharp decline on County Trunk O from north to south as one approaches the intersection.

On the morning of the day in question, the plaintiff drove from his home to Randolph for the purpose of looking at the Williams farm near Randolph with the defendant Gehrung.On arriving at Randolph, Klas suggested that the trip be made in his car.Gehrung requested that they ride in the defendant Gehrung's car because he, Gehrung, was more comfortable in his car.It appears that he was a very large man and he had had the front seat set back three inches to accommodate him.They drove from Randolph in Gehrung's car north to County Trunk X and then west to the Williams farm where they remained for a short time and then started the return trip to Randolph, the defendant Gehrung driving, the plaintiff Klas seated on the right side of the front seat.About the time they started back, a wet heavy snow started falling.The intersection in question is about two and one-half miles east from the Williams farm.While the Gehrung car was approaching the intersection from the west, the Fenske car was coming toward it from the north.

All the direct evidence in the record relating to the manner in which Gehrung operated his car comes from Gehrung, a witness,Erma Pollock, a woman forty-four years of age, who saw both the Fenske car and the Gehrung car before they collided, Emil Pollock, father of Erma, who was washing his hands was called to the window by his daughter but when he reached a point where he could view the scene of the accident, the accident was over.

No claim is made upon this appeal that Fenske was not negligent in all the respects found by the jury.On the other hand, the plaintiff and Gehrung contend that there is no evidence to sustain the finding of negligence as to Gehrung.All the parties concerned were familiar with the intersection.Gehrung testified that as they left the Willaims farm the wet snow which had fallen was packed on the road: The blacktop was slippery, he drove from the Williams farm at a speed of from 25 to 30 miles per hour; he knew that as he approached the intersection he was traveling on an arterial highway and that the stop sign north of County Trunk X was approximately 90 feet north of the intersection; as he approached the intersection, he testified he reduced his speed to around 15 to 20 miles an hour, until at a point when he was 180 to 200 feet from the intersection and could see up the road; there was no car between the mailbox and the intersection.

The mail box referred to was 150 feet north of the center of County Trunk X.He further testified that he went ahead a distance of 75 feet or so and saw the defendant Fenske's car near the mail box, about 150 feet north of the intersection.He estimated his distance from the intersection then around 100 feet.Thinking that the Fenske car would stop at the stop sign, he continued on for a short distance and then saw that the Fenske car was not going to stop at the stop sign.Gehrung then turned his car to the right and tried to increase his speed because he was afraid that he could not stop on the slippery pavement in time to avoid an accident.He estimates that he was about 60 feet west of the intersection when he determined that the Fenske car was not going to stop.He then guided his car entirely off and to the south of County Trunk X and at the time his car was struck by the Fenske car, his rear wheels were on the east edge of County Trunk O and the rest of his car was in the grass plot in the southeast quarter of the intersection about three feet south of County Trunk X.His car was struck on the rear of the left side, the rear wheels and just back of the...