Lembke v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 07 December 1943
• Citation: 11 N.W.2d 169,243 Wis. 531
• Parties: LEMBKE v. FARMERS MUT. AUTOMOBILE INS. CO. et al.
• Court: Wisconsin Supreme Court

243 Wis. 531

11 N.W.2d 169

LEMBKE

v.FARMERS MUT. AUTOMOBILE INS. CO. et al.

Supreme Court of Wisconsin.

Oct. 12, 1943.

Rehearing Denied Dec. 7, 1943. See 12 N.W.2d 18.

Appeal from a judgment of the Circuit Court for Waupaca County; Herman J. Severson, Judge.

Action by Violet Lembke, as special administratrix of the estate of Arthur A. Lembke, deceased, against Farmers Mutual Automobile Insurance Company and another for injury and death of plaintiff's intestate in an automobile accident. From a judgment for plaintiff upon a special verdict, defendants appeal.-[By Editorial Staff.]

Judgment reversed and cause remanded with directions.

Action brought by Violet Lembke, as special administratrix of the estate of Arthur A. Lembke, deceased, against Harold Crane and his automobile liability insurer, to recover damages sustained by injury and death of Lembke caused by the negligence of the defendant Crane in operating his automobile. Upon a trial of the issues under the pleadings, the jury returned a special verdict upon which judgment was entered for the recovery of plaintiff's damages from defendants. They appealed from the judgment.

Fisher, Reinholdt & Peickert, of Stevens Point, for appellant.

Wendell McHenry, of Waupaca, for repspondent.

FRITZ, Justice.

Arthur A. Lembke died as the result of being struck by an automobile operated by the defendant, Harold Crane, about 8:30 P. M. on February 25, 1942. The accident happened on the twenty-three feet wide blacktop roadway of a highway extending north and south. While Lembke was driving southward, his car had stalled in the center of the west half of the roadway. He and his guest, Jens Jensen, pushed the car onto the three feet wide level west shoulder until it was along the side of a snowbank, about three feet from the blacktoproadway. On the east side the car extended about three feet onto the blacktop roadway, which left a clearance of eighteen to twenty feet for vehicular traffic on the blacktop roadway, in addition to the one foot wide level shoulder along the east side. The nearest driveway entering the highway was one-tenth of a mile to the south. Upon investigation Lembke learned that the car had stalled for want of gasoline. He turned off the lights on the car, which were still in operating condition, and although he had a flashlight in working order he did not use it. He and Jensen then walked 500 feet to a farmhouse to get gasoline. Jensen returned first and sat on the front seat of the car. When Lembke returned with gasoline in a two gallon can, he went to the rear and started pouring gasoline into the tank, the opening to which was near the rear left corner of the car. While so engaged he was struck and killed instantly by Crane's southbound car. The right corner thereof also struck the rear left corner of Lembke's car, crushing the fender and tearing off the fender guard at that corner, and the car was forced thirty-five feet ahead. The right front headlight and fender of Crane's car were smashed, and the right side of the front windshield was cracked. All of its lights were off when it came to a stop in the ditch on the east side of the highway after the collision.

In addition to the foregoing facts, which were established without dispute, there was proof which resulted, because of conflicts in the evidence, in issues for the jury in the following respects. Whether, as Crane testified, the night was very dark so that he could not see Lembke's car until he was twenty-five feet from it, or whether the moonlight and visibility were such that Lembke's car was visible to Crane while approaching for 400 to 500 feet from the north. Whether there was at the rear and above the left bumper of Lembke's car, and visible to a driver approaching from the north a reflective signal in compliance with the S. A. E. requirements, and whether there were also two red button reflectors and a yellow reflector near the license plate in the center of the spare tire. Whether, when he came close to Lembke's car, Crane was blinded by the headlights of...