Lake to Lake Dairy Co-op. v. Andrews, CO-OP

• Decision Date: 02 June 1953
• Docket Number: CO-OP
• Citation: 58 N.W.2d 685,264 Wis. 170
• Parties: LAKE TO LAKE DAIRYv. ANDREWS et al. EMPLOYERS MUT. CAS. CO., Inc., v. ANDREWS OIL CO. ANDREWS, v. CENEFELT et al.
• Court: Wisconsin Supreme Court

Page 685

58 N.W.2d 685

264 Wis. 170

LAKE TO LAKE DAIRY CO-OP. v. ANDREWS et al.

EMPLOYERS MUT. CAS. CO., Inc., v. ANDREWS OIL CO.

ANDREWS, v. CENEFELT et al.

Supreme Court of Wisconsin.

June 2, 1953.

The three actions involved in this appeal arose out of the collision between two trucks, one owned by Lake to Lake Dairy Co-Operative (driven by Earl Cenefelt), which was insured by Employers Mutual Casualty Company, and the other owned by Dale Andrews, d/b/a Andrews Oil Company (driven by Glen Paradise), insured by Lumbermen's Mutual Casualty Company. The actions were consolidated for trial and upon a jury verdict judgments were rendered in favor of the Dairy Co-Operative and Cenefelt. From those judgments Andrews Oil Company and Lumbermen's Mutual Casualty Company appeal.

The accident happened about 3:45 p.m. September 16, 1950, a clear, sunny, dry day, at the intersection of Highway 96 and a town road in the southern part of Brown county. Neither highway at this intersection was designated as an arterial highway and there were no arterial stop signs. Earl Cenefelt was driving a five-ton, 1947 Reo tank-type milk truck owned by Lake to Lake Dairy Co-Operative in a northerly direction on Highway 96 (a 22-foot blacktop road) and Glen Paradise was driving a 1949 Chevrolet pickup truck owned by the Andrews Oil Company east on the town road (a gravel road 16 to 18 feet wide). A cornfield was located to the west of Highway 96 and to the south of the town road, which obstructed the vision of both drivers for some distance back of the intersection, which obstruction continued practically up to the boundary of the highway, the corn being some 7 feet tall. The point of impact occurred 3 feet west of the east edge of Highway 96, the front of the milk truck striking the right rear wheel of the pickup truck when it had nearly cleared the intersection.

The case was tried to the court and a jury, and a special verdict was submitted. Questions as to lookout, speed, and yielding the right-of-way were submitted as to the alleged negligence of Paradise, the court answering the lookout question 'Yes' as a matter of law, and the jury answering 'Yes' to the speed and right-of-way questions; and the jury found that the negligence of Paradise in all three respects was causal. With respect to Cenefelt, questions were submitted as to speed and lookout, and the jury absolved him from all negligence.

Everson, Ryan, Whiteny & O'Melia, Green Bay, for appellants.

Welsh, Trowbridge, Wilmer & Bills, Green Bay, for respondents.

MARTIN, Justice.

The following three issues are raised on this appeal:

1. Did the trial court err in holding Paradise to be negligent as to lookout as a matter of law?

2. Did the court err in including in the special verdict the right-of-way question with respect to the alleged negligence of Paradise?

3. Was Cenefelt guilty of negligence as to speed as a matter of law?

Paradise testified that as he approached the intersection and when about 30 to 40 feet distant from it, he looked to his left and then looked to his right when he was 'right up by the intersection' and 'just about to enter the intersection.' He further testified that when he looked to the right he could see 100 feet to the south and did not see the truck driven by Cenefelt. This court has repeatedly held that when one looks and does not see what is in plain sight, he is in the same situation as one who does not look. Schoenberg v. Berger, 1949, 257 Wis. 100, 42 N.W.2d 466; Rock v. Sarazen, 1932, 209 Wis. 126, 244 N.W. 577. The trial court therefore properly found Paradise negligent with respect to lookout as a matter of law.

Appellant next contends that Cenefelt should have been held negligent with respect to speed as a matter of law and that no question should have been submitted as to yielding the right-of-way on the part of Paradise, because, under the provisions of sec. 85.18(1), Stats., Cenefelt had forfeited the right-of-way by reason of his excessive speed.

No question is raised as to respondent's lookout, so we may assume he exercised due care in that respect. We are not here faced with the proposition that we must find Cenefelt negligent as to speed and management and control if there is any substantial evidence to support such a finding. The jury found that he exercised due care in such respects. We face the problem whether Cenefelt was negligent as a matter of law in these respects--in other words, whether the evidence is such that no other conclusion can be drawn.

The duty of a driver in traversing an intersection is set forth in sec. 85.40(2)(a) and (b), Stats., as follows:

'(a) No person shall operate a vehicle at a speed greater than is reasonable and prudent under conditions and having regard for the actual and potential hazards then existing and the speed of the vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care.

'(b) The operator of every vehicle shall, consistent with the requirements of paragraph (a), operate at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, when passing school children or other pedestrians, and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions.'

We do not construe the language of sub. (b) requiring a driver to 'operate at an appropriate reduced speed when approaching * * * an intersection * * * and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions' to mean that no matter at what speed (under the maximum limit) a vehicle is being operated, it must be reduced when approaching an intersection. Cenefelt testified that his speed was 35 to 40 miles per hour. This was corroborated by the eyewitness Leland Fels who estimated the speed of both vehicles at between 35 and 40. Whether this was a 'reasonable and prudent' speed and 'an appropriate reduced speed' under the conditions then existing and consideriang the hazard presented by the cornfield, was a question for the jury. It could well have concluded from all...