Lenzen v. Barndt, U-CAR
| Decision Date | 01 May 1997 |
| Docket Number | U-CAR,HM,No. 96-1855-FT,P,96-1855-FT |
| Citation | 211 Wis.2d 889,568 N.W.2d 652 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Melissa C. LENZEN, Plaintiff-Appellant, Joan KAISER, Wisconsin Physicians Service, andlaintiffs, v. Thomas A. BARNDT, and AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
Before DYKMAN, P.J., VERGERONT and ROGGENSACK, JJ.
Melissa C. Lenzen appeals from a judgment dismissing her personal injury complaint. She raises several issues related to jury instructions. We affirm.
The basic facts are not in dispute. Defendant Thomas A. Barndt was driving east on University Avenue in November 1988. At that time University Avenue was marked for one lane of traffic in each direction. Ahead of Barndt, also eastbound on University Avenue, two cars were stopped. It appears undisputed that the first car ultimately turned left. The intentions of the second car are in dispute. Barndt moved to the right and began to pass the two stopped vehicles on their right. Plaintiff Lenzen was walking north on the west side of Middleton Street, approaching University Avenue. As he approached the intersection Barndt attempted to stop, but slid on snow. His vehicle struck Lenzen near the southwest corner of the intersection, although the precise location was in dispute.
The jury found both Barndt and Lenzen negligent, and apportioned the negligence 15% to Barndt and 85% to Lenzen. Accordingly, the court dismissed the complaint. Lenzen appeals.
Lenzen argues that the circuit court erred by not giving the jury instructions based on certain rules of the road. The first rule is found in § 346.10(2), STATS., 1987-88, which provides in relevant part: "[T]he operator of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any intersection...."
We conclude the court did not err because there is no evidence of record that Barndt's conduct violated this rule. The statute does not apply to Barndt's passing of the first vehicle waiting at the intersection because that vehicle ultimately turned left, and therefore was not "proceeding in the same direction."
Barndt's passing of the second vehicle did not violate the statute because the vehicle was not within the intersection. The prohibition on passing "at any intersection" is a penal statute which "requires a strict construction of the word 'at.' " Behr v. Larson, 275 Wis. 620, 626, 83 N.W.2d 157, 161 (1957). "[W]ithout evidence that the collision occurred within the intersection no violation was shown." Id. (emphasis added). The term "intersection" is defined as "the area embraced within the prolongation or connection of the curb lines ... of 2 or more highways which join one another at, or approximately at right angles." Section 340.01(25), STATS., 1987-88. Matthew McGilligan provided the only testimony of record about the specific locations of the cars Barndt passed. He testified that the first car was across the crosswalk, which extended north from the west side of Middleton Street, and the second car was five to seven feet behind that car. Therefore, the second car was not in the intersection, and Barndt's passing of it did not violate the rule.
Lenzen also argues that the circuit court erred in instructing the jury as follows:
The operator of a vehicle may overtake and pass another vehicle upon the right if such movement can be done in safety and if he can do so without driving off the pavement or main-traveled portion of the roadway, when the vehicle overtaken is making or about to make a left turn.
The instruction which was based on § 346.08(1), STATS., 1987-88, which provided:
The operator of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety and only if he can do so without driving off the pavement or main-traveled portion of the roadway, and then only under the following conditions:
(1) When the vehicle overtaken is making or about to make a left turn; ...
Lenzen argues that the instruction should not have been given because the statute allowed Barndt to pass only one "vehicle," rather than the two "vehicles" which were present on University Avenue. Lenzen also argues that the instruction did not properly state the content of the statute because the instruction omits the part of the statute that says passing on the right can be done only when the passed vehicle is turning left.
Barndt responds that Lenzen waived these arguments by failing to object at trial. See § 805.13(3), STATS. We disagree. Lenzen's objection to this instruction was sufficiently particular to preserve the arguments made on appeal. Turning to the merits, we reject both of Lenzen's arguments. As to the first, while it is true that the statute provided...
To continue reading
Request your trial