O'Leary v. Buhrow

• Decision Date: 25 February 1947
• Citation: 249 Wis. 559,25 N.W.2d 449
• Parties: O'LEARY v. BUHROW.
• Court: Wisconsin Supreme Court

249 Wis. 559

25 N.W.2d 449

O'LEARY

v.BUHROW.

Supreme Court of Wisconsin.

Dec. 18, 1946.

Rehearing Denied Feb. 25, 1947.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Reversed.

Action commenced December 20, 1944 by plaintiff O'Leary to recover from defendant Buhrow damages for personal injuries growing out of an automobile accident. Defendant counterclaimed. Judgment was entered June 10, 1946, dismissing the complaint and adjudging that the defendant recover from the plaintiff $1420.95 damages and $116.20 costs and disbursements. Plaintiff appeals.

The action arose out of a collision between automobiles operated by plaintiff and by defendant about 6:05 P.M. December 5, 1944, on a three-lane highway in Milwaukee county. Plaintiff was proceeding in a southerly direction at twenty-five or thirty miles per hour and defendant was proceeding northerly at twenty miles per hour. The visibility was poor. Darkness had fallen and both drivers had turned on the lights of their cars. The roadway was covered with slushy snow which obscured the lane markings and made the roadway slippery.

Defendant swung his car into the center lane to pass another car and collided with the plaintiff's car, which was approaching from the opposite direction. The jury found, in answer to appropriate questions, that the plaintiff O'Leary was negligent with respect to the part of the roadway in which he was driving his automobile at and prior to the time of the collision and with respect to management and control, and that such negligence constituted a cause of the collision. It found that the defendant Buhrow was negligent with respect to the part of the roadway in which he was driving his automobile at and prior to the time of the collision, but that he was not negligent with respect to the management and control of his automobile at that time. It found that his negligence as to the part of the road in which he was driving was a cause of the collision. It apportioned the negligence attributable to each driver as seventy-five per cent to O'Leary and twenty-five per cent to Buhrow.

The usual motions after verdict were made.

Gold & McCann, and Richard A. McDermott, all of Milwaukee, for appellant.

P. F. Leuch, of Milwaukee, for respondent.

ROSENBERRY, Chief Justice.

This appeal turns on whether the jury's findings are supported by the evidence.

There is ample evidence to support the finding that both appellant and respondent were negligent with respect to the part of the road upon which they were driving at and immediately prior to the time of the collision. The highway was marked for three ten-foot lanes. Such markings allocated the two outside lanes for travel in opposite directions and the inside lane for passing. The right of a driver of an automobile to proceed upon the right half of a highway under sec. 85.15(1), stats., is restricted by that same subsection to travel within a designated lane where such lanes have been marked.

There is testimony to support the conclusion that Buhrow was traveling on the proper outside northbound lane preceded by several cars which were likewise traveling within the lane. O'Leary was approaching from the opposite direction. His testimony was confused as to just where he was driving with reference to the traffic lanes....