Mainz v. Lund
| Decision Date | 05 February 1963 |
| Citation | 119 N.W.2d 334,18 Wis.2d 633 |
| Parties | Lois MAINZ, a minor, by Daniel T. Flaherty, her Guardian ad litem, et al., Appellants, v. Glen A. L. LUND et al., Respondents. |
| Court | Wisconsin Supreme Court |
Engelhard, Snodgrass & Goerdt, Charles N. Goerdt and Daniel T. Flaherty, La Crosse, for appellants.
Bosshard, Arneson & Sundet, Patrick R. Doyle, La Crosse, for respondents.
The issues presented on this appeal are:
(1) Was defendant Lund causally negligent as a matter of law?
(2) Did the trial court commit prejudicial error in its instructions to the jury?
(3) Should a new trial be granted in the interest of justice?
Negligence Issue.
Defendant Lund at the time of the accident was twenty-six years of age and employed as a manufacturing engineer by the Trane Company at its La Crosse plant. He left the Trane Company plant on the day of the accident at about 4:45 P.M. and got into his 1956 four door Oldsmobile sedan to drive home. He had with him three fellow employees, Miller, Liverzani, and Demco. It was growing dark and Lund drove with his headlights on low beam. He testified that these lights gave him visibility for a distance of 90 feet ahead of his car. There was no fog or haze; the weather was clear, and the pavement was dry. Lund's route led onto Losey boulevard three or four blocks south of the point of accident. He stated that he maintained a constant speed which he estimated to have been 20 to 25 miles per hour although he did not look at his speedometer. The applicable speed limit was 25 miles per hour. He was traveling in the right-hand lane of the two northbound traffic lanes.
We will first consider Lund's negligence as to lookout. He testified that as he approached the intersection with Green Bay street, he made an observation to his left but did not turn his head in doing so. At the intersection he saw the approaching lights of a group of southbound cars a block or two ahead on Losey boulevard. The traffic lights on Losey boulevard at the intersection two blocks north of the Green Bay street intersection had apparently changed shortly before so as to permit southbound traffic to proceed. Lund was asked this question and gave this answer:
Lund did not see the children standing on the concrete island prior to the accident. He testified that when about halfway through the intersection he saw a blur proceeding from left to right. This blur was Lois Mainz darting across the northbound lanes of Losey boulevard. Lund immediately applied his brakes as hard as he could. He stated that when his car struck Lois she was carried along on the hood until the car stopped when she continued to roll along the pavement. The only damage to Lund's car was a small dent in the front of the hood on the left side.
Neither the car nor the child was moved after the accident until the police arrived and took various measurements. As a result of Lund's applying his brakes hard, double skid marks extended back 56 feet 2 inches from the rear bumper of his car. The south ends of these skid marks were about at the extended north curb line of the intersection. The distance between the north and south curb lines of the intersection is 50 feet. Lund's car was 16 feet 10 inches long and Lois lay a distance of 25 feet 6 inches ahead of the car. Her head was 15 feet 7 inches and the car was 8 feet 6 inches from the east curb line. The northbound lanes on Losey boulevard are 29 feet wide. Based on Lund's testimony the point of impact occurred approximately 31 feet north of the north curb line of the intersection. Thus Lund's car skidded 25 feet after striking Lois. Therefore, she was thrown and rolled by the force of the impact a distance of approximately 67 feet.
The evidence concerning lighting at the intersection at the time of the accident is not too satisfactory. Nevertheless, there is testimony that the filling station at the northeast corner of the intersection and the shopping center to the immediate north of the filling station were well lighted at the time. Light from these sources should have helped to light the intersection.
If this accident had occurred in broad daylight and not at dusk, we would have no hesitancy in holding Lund negligent as a matter of law for not having seen the four children on the concrete island. Of course had he seen these small children, it would have been his duty to so manage and control his car that he could avoid an accident if one of the children started to cross the street. Cf. Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis.2d 499, 117 N.W.2d 666. We find no basis, however, for finding Lund negligent with respect to management and control because of his testimony that he applied his brakes as hard as he could as soon as he saw the child.
Even with the dusk conditions that prevailed here, Lund ordinarily should have been able to see the children on the island within the range of his headlights. The only mitigating circumstance is the possible obscuring effect of the headlights of the oncoming cars on Lund's vision. The sole testimony with respect to this effect is Lund's answer quoted above to the question which raised this issue. Even then the lights of these oncoming cars were moving and it is difficult to understand why the bodies of the children should not have been temporarily silhouetted or outlined because they stood in Lund's direct line of vision toward these oncoming lights.
One witness, an executive of the Trane Company named Pearse, who just prior to the accident had been driving directly behind Lund's car, testified that he first saw a group of children standing on the island in question when he was a little to the south of the south crosswalk line of the intersection. Lund's passenger, Liverzani, who was seated in the right rear seat, testified that he was putting on his gloves at the time of the accident and 'didn't see anything on the highway.' Nevertheless, Liverzani did not testify that he made any observation in the direction of the island where the children were standing. Thus we deem his testimony of no probative value as to whether the children were visible to a driver in Lund's position. The defendants had made arrangements for Demco, the other rear seat passenger, to come from out of town to testify. Nevertheless, his train was late and he did not arrive before the trial closed thus counsel stipulated that he would have testified to the same facts as did Liverzani. Miller, the front-seat passenger, resided in Utah at the time of trial and did not testify. Another witness, a Trane Company employment manager named Farnam, had driven through the intersection prior to the accident, stopped his car at a filling station two blocks to the north, and gotten out of his car when he heard the sound of squealing of tires on pavement. It is assumed that this sound was produced by Lund's car when the brakes were applied. Farnam testified that he saw no children on the island when he passed through the Green Bay street intersection shortly before Lund. We also deem Farnam's testimony of slight if any probative value because of the probability that the children arrived at the island after he had passed it.
While the issue is extremely close, we conclude that under the prevailing conditions of dusk and of moving lights of oncoming cars in the southbound lanes, the issue of whether Lund was negligent with respect to lookout presented a jury question which cannot now be resolved as a matter of law.
There is considerable discussion in the briefs as to whether the concrete island, upon which the children were standing prior to the accident, is a 'safety island' within the meaning of sec. 349.10(1)(b), Stats. For the purposes of this case we deem it entirely immaterial whether or not this island was a 'safety island' within the meaning of this statute. This is because Lois Mainz was of such tender age that she was incapable of contributory negligence (sec. 328.44, Stats.), and the island was located in a place where Lund was required to direct his lookout.
We will next consider Lund's negligence with respect to speed. The prevailing conditions of dusk and of moving lights of oncoming cars in the southbound lanes did not suddenly interfere with Lund's vision, but were present as Lund proceeded north on Losey boulevard for three or four blocks prior to the accident. Therefore, if these conditions interfered with his vision, he was required in the exercise of due care to travel at a reduced speed appropriate to such conditions. Sec. 346.57(2) and (3), Stats. 1 In Dahl v. Harwood (1953), 263 Wis. 1, 56...
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