Magin v. Bemis

• Decision Date: 29 June 1962
• Citation: 17 Wis.2d 192,116 N.W.2d 129
• Parties: Edward MAGIN, Appellant, v. Edwin L. BEMIS et al., Respondents. Edwin L. BEMIS, M.D., Respondent, v. Edward J. MAGIN, Appellant.
• Court: Wisconsin Supreme Court

Page 129

116 N.W.2d 129

17 Wis.2d 192

Edward MAGIN, Appellant, v. Edwin L. BEMIS et al., Respondents.

Edwin L. BEMIS, M.D., Respondent, v. Edward J. MAGIN, Appellant.

Supreme Court of Wisconsin.

June 29, 1962.

Eisenberg & Kletzke, Milwaukee, Edwin A. Star, Milwaukee, of counsel, for appellant.

Anderson & Murphy, Milwaukee, for respondents.

HALLOWS, Justice.

The facts are in dispute and present two versions of the accident. According to Magin's testimony, he was traveling east on West Mitchell street at 15 or 20 miles per hour, approaching South 54th street. When he was about 150 feet from the point of impact and after the traffic, which had been in front of him, had turned off the arterial to the right, he saw the Bemis automobile approaching at about 45 miles per hour from the north on South 54th street some 160 or 170 feet north of the point of impact. He kept the Bemis automobile in his vision continually and did not observe Bemis stop at the stop sign. When he realized Bemis was not going to stop and was going to continue through the intersection, he sounded his horn, applied his brakes and turned the motorcycle to the right to avoid the accident, but the right front fender of the Bemis car struck the motorcycle. Magin was unseated and struck the automobile and landed on the pavement on his buttocks and back.

Bemis testified he came to a full stop at West Mitchell street, looked in both directions and as he started up slowly, saw no vehicles coming from either direction on West Mitchell street. He accelerated to a speed of 10 or 15 miles per hour through the intersection and when he reached a point where his driver's seat was on or just past the centerline of Mitchell street, he first observed Magin approaching from his right with a roar at a distance of 55 feet. Bemis testified he started up slowly because his vision was obscured to the right beyond midblock because of the back-up of cars from South 55th street. When Bemis saw the motorcycle, he turned his car to the left. He estimated the speed of the motorcycle at 40 to 50 miles per hour, and within a few seconds after first seeing the motorcycle the impact occurred, the motorcycle striking the car door. Bemis saw Magin turn his motorcycle to the right. He did not remember whether he accelerated or braked his car upon seeing Magin approaching.

Magin was taken to a hospital and found to have sustained three pelvic fractures. There was fragmentation of the bones and damage to the soft tissue in the pelvic area. Magin lost approximately four months of work. There is some dispute in the testimony concerning his recovery. There was some medical testimony to the effect he has had a complete recovery, but Magin claims he developed a limp and a disability which prevents him from normal exercise to keep down his weight. There was medical testimony that because of the fragmentation of the bones there would be more pain than from a fracture without fragmentation.

Magin submits the evidence does not sustain the finding that he was negligent in respect to claiming the right of way; that Bemis as a matter of law was negligent in failing to yield the right of way and the damages were manifestly inadequate. One of the difficulties we have with the verdict is the answers cannot be rationalized on any consistent theory. In sustaining the verdict, the trial court in its memorandum opinion stated that in finding Bemis not negligent as to yielding the right of way, the jury found Magin was such a distance away when Bemis entered the intersection that Magin could not have been within the term 'approaching the intersection' at approximately the same time and, therefore, Magin would not have the right of way and there was no duty on the part of Bemis to yield. However, in finding Magin negligent in claiming the right of way, the trial court was of the view that under the instructions the jury found, in effect, that Magin was insisting on the right of way he otherwise might have had and, because the jury also found Magin was not negligent as to lookout or speed, he could have controlled the situation and avoided the collision had he not insisted on his right of way.

While no exception was taken, the inquiry is unusual in form and misleading in that it asked a question in terms of negligence in respect to claiming the right of way. The instructions were general and not keyed to particular inquiries. The jury was correctly instructed that while one may have the right of way and may presume others will respect it, he may nevertheless be negligent in respect to management and control if his right of way is not respected and he does not do what he can do to prevent the accident. Other parts of the instructions were such as would lead the jury to believe this inquiry could apply to Magin if he were not approaching the intersection within the meaning of the right of way concept and yet was insisting on a right he did not have. The jury was also instructed in reference to both secs. 85.18(1) and (4), Stats. (1955) ¹ which were in effect at the time of this accident in 1956. We do not see how sec. 85.18(1) has any application to the facts of this case. West Mitchell street was an arterial and the right of way issue was governed solely by sec. 85.18(4).

In the instant case, as Magin on the arterial was approaching from Bemis' right, it was perhaps natural to instruct on both subsections (1) and (4) of sec. 85.18, Stats. (1955), especially in view of the language in Nessler v. Nowicki (1961), 12 Wis.2d 421, 107 N.W.2d 616. Stating that both sections apply under the facts of that case was a harmless inadvertence and an oversight, as a determination of the right of way, as in this case, was governed solely by sec. 85.18(4).

Prior to the Laws of 1955, Ch. 531, sec. 4, one approaching an arterial and stopping was then governed by the right of way rule provided in sec. 85.18(1). Cases construing that section are no longer applicable to a sec. 85.18(4), 1955 Stats., case and should be so distinguished. See for e. g., Blom v. Kumbier (1957), 275 Wis. 277, 81 N.W.2d 528. After the amendment, one approaching an arterial had the duty to stop and yield the right of way to the approaching operator on an arterial whether he was coming from the right or the left of the operator stopped on the non-arterial highway. This change in the statute granting the right of way to approaching traffic on the arterial was pointed out in Plog v. Zolper (1957), 1 Wis.2d 517, 85 N.W.2d 492, not cited by the trial court or either party. In that case, this court said 'approaching the intersection' as employed in sec. 85.18(4) had a related meaning to the...