Leonard v. Bottomley

• Decision Date: 06 December 1932
• Citation: Leonard v. Bottomley, 210 Wis. 411, 245 N.W. 849 (Wis. 1932)
• Parties: LEONARD v. BOTTOMLEY ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 411

245 N.W. 849

LEONARD

v.BOTTOMLEY ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Circuit Judge.

Action by Samuel R. Leonard against C. E. Bottomley and another, with a counterclaim by defendant named. Judgment for plaintiff, and defendants appeal.--[By Editorial Staff.]

Judgment modified in part and affirmed in part, and cause remanded.

Action begun June 27, 1931, to recover damages growing out of an automobile collision between plaintiff's and defendant's cars.

Plaintiff alleges that his damages were proximately caused by the negligence and want of ordinary care on the part of the defendant, in that defendant operated his automobile carelessly in violation of the law and the rules of the road. The defendant admits the collision, but denies that it was caused by any negligence on his part. Before the accident because of smoke from a grass fire neither driver saw the other. Defendant was to some degree enveloped in the smoke while driving 590 feet. In the special verdict, the jury found that defendant failed to operate his automobile on his right half of the roadway; that he operated it without due caution, and in a manner so as to endanger others and without due regard to the traffic and width of the highway. The plaintiff was found to be free from negligence in the operation of his automobile. There were the usual motions after verdict. The court denied defendant's motions, and granted the plaintiff's for judgment on the verdict. From a judgment entered February 13, 1932, in favor of plaintiff, defendant appeals.Whaley & Paulsen, of Racine, for appellants.

Simmons, Walker, Wratten & Sporer, of Racine, (Helmer & Minnich, of Carroll, Iowa, of Counsel), for respondent.

FAIRCHILD, J.

[1] The special verdict is criticized by appellant because certain questions proper in scope are so worded as to carry an impression that there was a failure to operate an automobile on its proper side of the road. But the verdict contained similar questions with respect to both the appellant and the respondent, and studiously refrained from emphasizing the possible fault of either. This balancing of disadvantages was made possible in this case because there was submitted to the jury the claim of respondent and the counterclaim of appellants which were almost identical in their charges against each other. The use of the identical questions with relation to each party occurring in the verdict in the manner in which they do brought about a situation where the jury were asked at the same time to answer a question as to whether the appellant was negligent, in that he failed to operate his automobile upon the right half of the road with one like it concerning the respondent. When this is considered and given its true weight, the absence of prejudicial error at once becomes apparent.

[2] The evidence that respondent was on his side of the road amply sustains the jury's finding in that particular. The appellant testified to a state of facts which, given an interpretation most favorable to him, would place the left wheel of respondent's car slightly to his left of the road. This evidence was opposed by testimony of the other side to the effect that the respondent was clearly on his side of the road. The son of respondent said that, when the collision occurred and the right door of the car, through the open window of which he had his arm resting on the door, opened and he stepped out, he was on the shoulder to the right of the concrete. The testimony of Mrs. Leonard was to the same effect as was that of respondent, that testimony, being accepted by the jury, under the circumstances in this case is the controlling testimony on that point and fixes the place of the collision as claimed by respondent. This also determines the question as to respondent's freedom from negligence contributing to his injury. The testimony discloses that he saw the smoke, slowed down, and kept to the right side of the highway. “The wind was in the northwest and was awful gusty. At times it blew more than it did others. * * * Well, at times the road would be a little clearer than others, especially when the green grass was burning and wind blowing at the same time it would completely cover the road.”

[3][4] Before respondent had entered the smoke, and with his car to the right of the highway, he was hit by the appellant, who was emerging from the cloud of smoke. It was made to appear, and in fact admitted, that it was respondent's intention to continue to move forward in spite of the presence of the smoke, but at the time of the injury he was where he had a right to be, and the collision would have occurred had he been in that place and standing still. Under this state of facts, it was for the jury to say whether or not the respondent was negligent, and their answer in the special verdict is to the effect that he was not. As to appellant's negligence, there was a jury question. He took the chances incident to traveling over a highway covered with smoke which interfered with his ability to see in varying degrees. The situation in which he found himself was not altogether of sudden origin, such as was that in which the defendant in Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207, found himself, nor were his acts of the same cautious nature as were those of Prideaux. In the Prideaux Case a cloud of dust caused by a passing auto blinded him, and in an effort to stop his car he unconsciously crossed the middle of the road, causing a collision.

Here the appellant was proceeding in smoke for some distance, and his statement that he struck something the instant this thick cloud obscured his vision indicates that his position on the road was already somewhat uncertain. The coming of this thick cloud of smoke either was not seen by appellant or ignored on the assumption that he could work his way through. His statement that he did not see respondent's car and thought he had hit a culvert suggests that at the time he was confused as to his position on the highway. His movement to the wrong side of the road did not come about through an effort to stop because he could not see but in his driving on with his vision obscured. As said by the learned trial judge in his decision on motions after verdict, “whether the smoke was observed before entering it and while its density obscuring the vision came on more or less quickly, its presence and the likelihood of becoming more dense was known to and must have been anticipated by the defendant, together with the necessity of exercising a higher degree of care, whether that degree of care which, under the conditions, constituted ordinary care was, in fact, exercised by the defendant created a jury issue. The jury unanimously decided, ‘ordinary care was not...