Misiewicz v. Waters
| Decision Date | 28 April 1964 |
| Citation | 127 N.W.2d 776,23 Wis.2d 512 |
| Parties | Walter MISIEWICZ et al., Appellants, v. Brian G. WATERS et al., Respondents. |
| Court | Wisconsin Supreme Court |
Charlton, Yanisch, Binzak & Ritchay, Milwaukee, for appellants.
Wickham Borgelt, Skogstad 3 Powell, Milwaukee, Clayton R. Hahn, Milwaukee, of counsel, for respondents.
The issues presented by the parties can be stated in one question. Was it prejudicial error to give the defendant the benefit of the emergency instruction?
The emergency instruction given by the trial court was adopted from the standard instruction appearing in Wis J I--Civil, Part I, 1015:
One of the contentions of the plaintiff is that if the instruction was properly given to the jury it should apply to both drivers and not only to the defendant. This position is based upon the fact that both parties claim the other driver invaded their lane of traffic.
This contention cannot be sustained. The evidence of the plaintiff is that she was properly stopped in a position to make a left turn and that while so stopped the defendant invaded her lane and struck her vehicle. There is nothing in the evidence, nor any claim made by her, that she acted or failed to act in response to a hazard or emergency that suddenly confronted her. The emergency doctrine is designed to excuse conduct, either action or inaction, that might otherwise be negligent, when such conduct is motivated by a sudden emergency and without time for sufficient reflection.
The principal argument advanced by the plaintiff is that the defendant was not entitled to the benefit of the emergency instruction because he was negligent as to lookout as a matter of law. Borowske v. Integrity Mut. Ins. Co. (1963), 20 Wis. 93, 121 N.W.2d 287, is cited as authority for this position.
Ordinarily the application of the emergency rule is for the...
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...to give even a proper instruction is not error where it affects both drivers in the same way and to the same degree. The case of Misiewicz v. Waters, supra, dealt with the problem of prejudicial error in regard to the emergency instruction. In this case the defendant was given the benefit o......