Neumann v. Evans

• Decision Date: 03 April 1956
• Citation: 272 Wis. 579,76 N.W.2d 322
• Parties: Albert E. NEUMANN and Leona Neumann, His Wife, Plaintiffs-Respondents, v. Dustin EVANS and Hardware Mutual Casualty Company, a Wisconsin Corporation, Defendants-Appellants. Albert E. NEUMANN, Administrator of the Estate of Floyd A. Neumann, Plaintiff-Respondent, v. Dustin EVANS and Hardware Mutual Casualty Company, a Wisconsin Corporation, Defendants-Appellants. Albert E. NEUMANN and Edmund F. Wuerch, as Guardians of Joanne Marie Neumann, a Minor, Plaintiff-Respondent, v. Dustin EVANS and Hardware Mutual Casualty Company, a Wisconsin Corporation, Defendants-Appellants, and Rural Mutual Casualty Company of Wisconsin, a Wisconsin Corporation, Defendants. Edmund F. WUERCH and Frieda Wuerch, His Wife, Plaintiffs-Respondents, v. Dustin EVANS and Hardware Mutual Casualty Company, a Wisconsin Corporation, Defendants-Appellants, and Rural Mutual Casualty Company of Wisconsin, a Wisconsin Corporation, Defendants. Dustin EVANS, Plaintiff-Appellant, v. RURAL MUTUAL CASUALTY COMPANY OF WISCONSIN, a Wisconsin Corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 322

76 N.W.2d 322

272 Wis. 579

Albert E. NEUMANN and Leona Neumann, His Wife, Plaintiffs-Respondents, v. Dustin EVANS and Hardware Mutual Casualty Company, a

Wisconsin Corporation, Defendants-Appellants.

Albert E. NEUMANN, Administrator of the Estate of Floyd A.

Neumann, Plaintiff-Respondent, v. Dustin EVANS and Hardware Mutual Casualty Company, a

Wisconsin Corporation, Defendants-Appellants.

Albert E. NEUMANN and Edmund F. Wuerch, as Guardians of

Joanne Marie Neumann, a Minor, Plaintiff-Respondent, v. Dustin EVANS and Hardware Mutual Casualty Company, a

Wisconsin Corporation, Defendants-Appellants, and

Rural Mutual Casualty Company of Wisconsin, a Wisconsin

Corporation, Defendants.

Edmund F. WUERCH and Frieda Wuerch, His Wife, Plaintiffs-Respondents, v. Dustin EVANS and Hardware Mutual Casualty Company, a

Wisconsin Corporation, Defendants-Appellants, and

Rural Mutual Casualty Company of Wisconsin, a Wisconsin

Corporation, Defendants.

Dustin EVANS, Plaintiff-Appellant, v. RURAL MUTUAL CASUALTY COMPANY OF WISCONSIN, a Wisconsin

Corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

April 3, 1956.

Rehearing Denied June 5, 1956.

John P. McGalloway, Fond du Lac, for appellants.

Harry Stel, Markesan, Bogue & Sanderson, Portage, for respondents.

Edward T. O'Neill, Fond du Lac, for Rural Mut. Cas. Co.

GEHL, Justice.

Evans contends that the court erred in submitting in the verdict questions which inquired as to his speed and lookout. There was ample testimony to warrant submission of the questions and to support the jury's findings. Evans himself testified that as he approached the blind intersection he was traveling at the rate of 60 or 63 miles per hour. One witness testified that just before the collision Evans was traveling at the rate of from 75 to 85 miles per hour, a rate which the jury might well have found, as they did, to be unduly fast when considered with the fact that Evans was approaching a blind intersection with which he was familiar, Roeske v. Schmitt, 1954, 266 Wis. 557, 64 N.W.2d 394. As to lookout, Evans himself testified that he did not see the Neumann car until after the collision, which fact of itself supports the finding that he was negligent with respect to maintaining an efficient lookout.

It is the contention of Evans and his insurance carrier that the court erred in exonerating Neumann of negligence as a matter of law as to speed, management and control, and failure to yield the right of way.

There is no testimony to establish the fact or permit the inference that Neumann was driving at an excessive rate of speed as he crossed the intersection. Plaintiffs offered testimony of a witness that at a point about one-quarter of a mile east of the intersection Neumann was traveling at the rate of 50 miles per hour would not have established or permitted the inference that he was traveling at an excessive rate as he reached and crossed the intersection. Nor is there anything in the record which suggests that whatever his speed, it had any causal relationship with the collision. Evans contends that speed might have been inferred from the fact that Neumann was 'going at a rate of speed high enough to render him unable to stop in the distance from the fence line 23 feet to the concrete'. The trouble with that contention is that there is no testimony that he did not stop in that area or that he could not have done so.

Nor is there any testimony which would have supported a finding that Neumann was negligent as to management and control. The case of Weber v. Mayer, 1954, 266 Wis. 241, 253, 63 N.W.2d 318, 324, is directly in point. In that case a driver entering an intersection was found guilty as to lookout; we permitted the finding to stand, but held that under the circumstances, which for the purposes of the present discussion were identical with those present here, it was error to submit to the jury the question as to whether he was guilty as to management and control. Quoting from Crawley v. Hill, 1948, 253 Wis. 294, at page 298, 34 N.W.2d 123, we said in language which is particularly applicable to the facts of this case that,

"This is not a case where after a failure of lookout ceased the defendant in the management of his car was guilty of negligent management and control. If he was at the time negligent as to lookout and therefore did not see Crawley running into the lane of traffic until in the exercise of ordinary care he could do nothing to avoid the accident, the sole negligence is in respect to lookout and not as to management and control."

The trial court properly refused to submit to the jury a question as to whether Neumann was guilty of negligence as to management and control.

The court erred in the manner in which the question whether Neumann had failed to yield the right of way was treated. It is clear that the question whether Evans was guilty of negligence with respect to speed was for the jury. The jury would have been warranted in finding that the two drivers entered the intersection at approximately the same time. Evans was operating on an arterial highway and driving the vehicle on the right. He had the right of way and, unless he forfeited it by driving at an unlawful speed, the jury might have found Neumann guilty of negligence as to failing to yield it. Therefore the verdict should have been prepared in such form as not to require a determination whether Neumann failed to yield, if it had already been found by the jury that Evans by his speed had forfeited the right of way. We are of the opinion that if Evans had the right of way the evidence would permit the inference that Neumann failed to yield. See Johnson v. Fireman's Fund Indemnity Co., 1953, 264 Wis. 358, 59 N.W.2d 660.

Had this issue been correctly submitted it is probable that by its answers the jury would have been affected in its apportionment of negligence. The error requires that there be a new trial.

A Miss Frieda Hein was called...