Nessler v. Nowicki

• Decision Date: 07 February 1961
• Citation: 12 Wis.2d 421,107 N.W.2d 616
• Parties: William NESSLER, Respondent, v. Richard NOWICKI et al., Appellants.
• Court: Wisconsin Supreme Court

Page 616

107 N.W.2d 616

12 Wis.2d 421

William NESSLER, Respondent, v. Richard NOWICKI et al., Appellants.

Supreme Court of Wisconsin.

Feb. 7, 1961.

Rehearing Denied April 4, 1961.

Kivett & Kasdorf, Milwaukee, Nonald J. Lewis, Milwaukee, of counsel, for appellants.

Eisenberg & Kletzke, Milwaukee, John W. Bernard, Milwaukee, of counsel, for respondent.

BROWN, Justice.

The appellants contend that the evidence does not sustain the jury's answers.

Nessler was twenty-one years old at the time of the accident. He was alone in the automobile which a friend had lent him. He testified that just before and at the time of the accident he was proceeding west on Layton Avenue at a speed of 25 to 28 miles per hour. The speed limit there was 30 miles per hour. Nessler said that as he approached the intersection of Layton Avenue and Pine Street, he saw the bus coming north from the parking lot and, without stopping at the stop sign, go across Layton Avenue to go north on Pine Street. When Nessler saw this happen he was unable to avoid striking the bus because when he attempted to go behind the bus, permitting the bus to cross ahead of him, this took him over into the south half of Layton Avenue and he was there faced by an eastbound automobile. That required Nessler to turn back into the north half of the highway and he could not then get by the rear end of the bus. The bus driver, Nowicki, testified that he first saw Nessler's car when the bus had reached the center of Layton Avenue and he did not see that car again until just before the collision occurred. This evidence supports the jury's answer that Nowicki was negligent in lookout and that such negligence was causal. The lookout was inadequate to inform Nowicki that a collision would result if the two automobiles kept their respective speeds and courses. The testimony also supports the answer that Nowicki was negligent in failing to yield the right of way to Nessler. Plaintiff had right of way under sec. 85.18(1) and (4), Stats., as follows:

'(1) Right of Way at Intersections. When 2 vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise provided in this section. The driver of any vehicle driving at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder.'

'(4) Vehicles Stopping for Arteries for Through Traffic. The operator of a vehicle shall stop as required by s. 85.69 before entering an artery for through traffic, and shall yield the right of way to other vehicles which have entered or are approaching the intersection upon the artery for through traffic.'

There is no testimony that the parties made any material alteration in their speeds after they were in view of each other. We have interpreted that part of the statute which refers to vehicles entering an intersection at 'approximately' the same time in Vogel v. Vetting, 1953, 265 Wis. 19, 26-27, 60 N.W.2d 399, 404:

"By approximately, the legislature must have meant the approach to an intersection of two vehicles so nearly at the same time that there would be imminent hazard of a collision if both continued the same course at the same speed. In that case, he on the left should yield to him on the right. While the driver on the left is not required to come to a dead stop, as at a through highway stop sign, unless it is necessary to avoid a collision, he nevertheless must approach the intersection with his car so under control that he can yield the right of way to a vehicle within the danger zone on the right. Such must have been the legislative intent. Other states having the same statutory provisions have supported this interpretation."

In Kraskey v. Johnson, 1954, 266 Wis. 201, 206, 63 N.W.2d 112, 115, we treated the same situation more specifically:

'* * * As to whether the vehicle from the right, of two vehicles approaching each other at a highway intersection, has the right of way over the other vehicle is not determined by which enters the intersection first. Under our decision in Vogel v. Vetting (1953), 265 Wis. 19, 25, 26, 60 N.W. (2d) 399, the test of whether they are approaching 'at approximately the same time' under the statute is rather whether there 'would be imminent hazard of a collision if both continued the same course at the same speed.''

The learned trial court cited both the above cases and correctly applied them to the present situation. It seems clear to us that the collision was inevitable when the parties made no material alternation in their courses and speeds.

Appellants ask that the court disregard the jury's answers or change them because Nessler's testimony was contradicted by witnesses for the defendants and, moreover, Nessler himself was impeached on other material issues. Nessler testified that the bus did not stop at the stop sign before entering the arterial highway, whereas two employes at different service stations at the intersection testified that they saw the bus stop at that place. That was testified to also by another disinterested witness, Immel. Immel also testified that he was driving west on Layton Avenue approaching the Pine Street intersection, and was overtaken and passed by Nessler within a few blocks of the intersection. Immel said that he himself was driving at 30 miles per hour and Nessler passed him at a high rate of speed, which Immel estimated was 50 miles per hour. (Nessler's estimate was a maximum of 28 miles per hour.)

Ordinarily we would consider these discrepancies to be no more than the usual conflicts of testimony of opposing witnesses which are to be resolved by the jury. Presently, this is more serious because of the demonstrated unreliability of Nessler's testimony in other respects. Nessler was a soldier stationed at an air base at Salina, Kansas. He had procured a four-day pass to leave the post but his pass limited him to a radius of 300 miles from Salina. Notwithstanding, he went to Milwaukee which is 700 miles from Salina, and there on the next to the last day of his leave he had this accident. Nessler was thrown...