Leanna v. Goethe

• Decision Date: 04 November 1941
• Citation: 300 N.W. 490,238 Wis. 616
• Parties: LEANNA v. GOETHE et al.
• Court: Wisconsin Supreme Court

238 Wis. 616

300 N.W. 490

LEANNA

v.GOETHE et al.

Supreme Court of Wisconsin.

Nov. 4, 1941.

Appeal from an order of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

Action brought by Cyrus Leanna against Herbert Goethe and his automobile liability insurer to recover damages sustained by plaintiff as the result of the negligence of Goethe in operating an automobile which collided with Leanna's motorcycle. The issues under the evidence were submitted to the jury for a special verdict. Each of the parties moved to have the court change certain of the jury's findings, and order judgment upon the verdict as amended; and, in the alternative, defendants moved for judgment upon the verdict and plaintiff moved for judgment notwithstanding the verdict or for a new trial. All motions were denied excepting the plaintiff's motion for a new trial; and from an order to the latter effect, defendants appealed. Plaintiff noticed a motion to review under sec. 274.12, Stats.

Regan & McCue, of Milwaukee, and Evrard & Evrard, of Green Bay, for appellants.

Kaftan, Rahr & Kaftan, of Green Bay, for respondent.

FRITZ, Justice.

Upon the defendant Goethe's appeal from the order granting the plaintiff Leanna's motion for a new trial, and the latter's motion to review, upon which he contends the court erred in denying his motion for judgment notwithstanding the verdict, it suffices to note the following matters. The collision in question occurred in the intersection of Monroe and Maine streets, in Green Bay, upon Leanna's motorcycle colliding head on with the right front fender of Goethe's automobile. Main street extended east and west and was 52 1/2 feet wide; Monroe street extended north and south and was 40 feet wide. As Goethe was approaching the intersection from the west, with the intention of turning north into Monroe street, the traffic lights were set for north and southbound traffic and therefore he reduced his speed to between 6 and 10 miles per hour. As the lights turned for east and westbound traffic to proceed just as he arrived at the intersection, Goethe continued eastward at that speed, with his car immediately south of the center line of Main street, to the center of Monroe street where he made a left turn, and then continued northward until he stopped his car 4 to 7 feet south of the north crosswalk, upon seeing Leanna's motorcycle coming from the east so rapidly that it was about to collide with Goethe's car. While Goethe was approaching and entering and turning in the intersection, a westbound automobile was standing at the east crosswalk and just north of the center line of Main street waiting for the traffic lights to change, and that car stayed there until after Goethe's car was struck by Leanna's motorcycle. He was traveling westward on the south half of the westbound traffic lane on Main street at a speed testified to be from 15 to 25 miles per hour and when he was close to the rear of the westbound automobile standing at the east crosswalk he saw the traffic lights change and, thereupon, continued onward by turning north and westward to pass that automobile and cross the intersection. Goethe had failed to give any signal of his intention to turn left across the lane for westbound traffic, and he did not see the approaching motorcycle until his wife, who was also sitting on the front seat, called his attention thereto by yelling “motorcycle”.

The jury found that the collision was caused by negligence on the part of Leanna in failing (1) to keep a proper lookout, (2) to yield the right of way, and (3) to drive at a reasonable speed so as to have his motorcycle under proper control. The jury found furthermore that the collision was caused by negligence of Goethe in failing to keep a proper lookout; that he (1) failed to give a plainly visible signal of his intention to turn left, and (2), in making his left turn, failed to afford Leanna a reasonable opportunity to avoid a collision; but that his failure in these two respects was not negligence and that neither of these failures was a cause of the collision. In connection with the above findings, the jury found that Goethe's causal negligence was forty per cent and Leanna's negligence was sixty per cent of the total causal negligence. The court, in granting Leanna's motion for a new trial, said, “Because of the jury's failure to find defendant negligent with respect to his failing to afford plaintiff a reasonable opportunity to avoid a collision, and to take this negligence into consideration in comparing the parties' negligence, a new trial must be granted.”

Defendants claim, in...