Ogle v. Avina

• Citation: 33 Wis.2d 125,146 N.W.2d 422
• Parties: James OGLE, etc., Plaintiff, v. Norbert AVINA, American Family Mutual Insurance Company, Thomas Laufenberg, and Great Lakes Mutual Insurance Company, Defendants-Appellants. Frank Pintar and United States Fidelity & Guaranty Co., Defendants-Respondents, American Standard Insurance Company, et al., Defendants.
• Decision Date: 02 December 1966
• Court: Wisconsin Supreme Court

Page 422

146 N.W.2d 422

33 Wis.2d 125

James OGLE, etc., Plaintiff, v. Norbert AVINA, American Family Mutual Insurance Company Thomas Laufenberg, and Great Lakes Mutual Insurance Company, Defendants-Appellants Frank Pintar and United States Fidelity & Guaranty Co. Defendants-Respondents American Standard Insurance Company, et al., Defendants.

Supreme Court of Wisconsin.

Dec. 2, 1966.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for respondents.

HALLOWS, Justice.

The appeal raises three questions which respectively relate to whether Pintar was negligent, whether Avina's negligence was causal, and whether the apportionment of the causal negligence between Avina and Laufenberg was correct. In determining these issues this court must test the findings of the trial court by the 'great weight and clear preponderance of the evidence' rule. State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 255, 112 N.W.2d 701, 705; Mitchell v. Western Cas. & Sur. Co. (1966), 30 Wis.2d 419, 421, 141 N.W.2d 212.

The collision occurred in a 50-miles-per-hour speed zone on Highway 15 in Waukesha county two miles east of Prospect Hill at 9:45 p.m. on September 19, 1962. Highway 15 at this point runs approximately east and west and on the night of the accident the road was dry. A private driveway from the premises south of the highway known as the Berlin Auction Barn connects to the highway 30 or 40 feet west of the point of impact. West of the driveway, Highway 15 is straight for 1,000 feet and then curves slightly to the south for 880 feet.

Pintar was leaving the Berlin Auction Barn parking lot and as he reached the south side of Highway 15 he stopped on the private driveway and looked to the west and to the east twice. He testified that the first time he looked to the west he saw beams of a car's headlights glowing around the curve but saw nothing to his right. On his second look to the left he saw the headlights of a car which he estimated to be about 1,000 feet away. On his second look to the east he saw the glow of lights of a westbound car over the slight crest of the road some 600 feet distant. He testified he did not compute or calculate the speed of the car approaching from the west but he assumed he could safely enter the highway and make his turn to the east.

Pintar entered the highway and proceeded east, shifting the gears of his car. He testified in making the turn he did not cross the centerline. The Ackerman car, whose lights he had seen approaching from the east, now pased him going west and when he was about 100 feet east of the driveway and had completed his shifting, Pintar felt a nudge or a tick on his car.

Laufenberg, who admits his negligence, testified he came around the curve from the west with Avina close behind him and shortly thereafter saw the Pintar car emerging from the driveway and blocking his lane of travel and one-half of the west-bound lane. He applied his brakes, but realizing he could not stop his car in time to avoid a collision he turned his wheels to the left. What then happened is unbelievably true. Laufenberg's car turned 180 degrees while remaining on the paved portion of the two-lane highway and continued east in the direction of its momentum, but backwards in the westbound lane. While proceeding in this way for some distance Laufenberg had what is best called, although with the rear end, a 'head-on collision' with the front end of the oncoming westbound Ackerman car, which Laufenberg never saw. Laufenberg is not sure what happened to the care after this impact.

Avina testified he was three to four carlengths behind Laufenberg just before the accident. There is other testimony that he was much closer. When he saw Laufenberg's brake lights go on he applied his brakes and turned to the right. He was unable to testify concerning the sequence of events, but from paint transfers and indentations on the cars it is a verity that the Laufenberg and Avina cars collided and the Avina and Ackerman cars collided. There is evidence from paint marks and physical damage that the Avina-Ackerman impact was not severe. After these collisions the Laufenberg car came to rest in the ditch south of the highway, facing south, the Avina car in the ditch on the north side of the highway, facing west and behind the Ackerman car which was also in the ditch, facing west. Pintar stopped his car on the south edge of the highway several hundred feet east of the driveway when he became aware of the collision behind him.

It was contended in the trial court and is urged here that Pintar was causally negligent both as to lookout and failing to yield the right-of-way to Laufenberg. The trial court found otherwise on the theory that Pintar could assume that Laufenberg was proceeding at a lawful rate of speed, which at the time and place of the accident was 50 miles per hour. The court also considered Pintar had concluded it was safe to enter the highway and his failure to judge the speed of the oncoming Laufenberg car was relatively unimportant.

The majority of the court, not including the writer and the chief justice, believes the finding exonerating Pintar of any negligence is not against the great weight and clear preponderance of the evidence. This view is based upon two reasons: First, Laufenberg was 1,000 feet west of the driveway when Pintar entered and turned to the east. At that distance from the driveway Laufenberg was not 'approaching' as that term is used in sec. 346.18 (4), Stats., ¹ so as to have a right-of-way to the road at and east of the driveway. Secondly, Pintar had a right to assume Laufenberg was proceeding at a lawful speed and the miscalculation failure which led to his assumption it was safe for him to enter the highway was a reasonable miscalculation, or one he reasonably did not have to make because of the 1,000-feet distance of the Laufenberg car.

It is true, an experienced driver may almost unconsciously, in a fraction of a second, judge distance and speed of an oncoming car sufficiently to determine whether it is safe for him to proceed onto a highway and yet be unable to state exactly the oncoming car's distance in feet or rate of speed in miles her hour. Given a sufficient look, a calculation of speed and distance may be in error and yet be reasonable and thus not determinative of negligence. Heinecke v. Hardware Mut. Cas. Co. (1953), 264 Wis. 89, 94, 58 N.W.2d 442. In Heinecke, we pointed out that one charged with the duty of lookout had to exercise, after making his observation, reasonable judgment in calculating the time it would take him to enter and reach his proper position on the highway. This case espoused a reasonable calculation. In Plog v. Zolper (1957), 1 Wis.2d 517, 527, 85 N.W.2d 492, we again addressed ourselves to calculation and to the sufficiency of the observation as elements of lookout. In Bowers v. Treuthardt (1958), 5 Wis.2d 271, 275, 92 N.W.2d 878, 881, we state almost categorically that '(f)ailure properly to evaluate what is seen is as much an element of negligent lookout as note to see the source of danger at al.' The controlling element in the decisions is the reason for the incorrect conclusion that it was safe for the driver to proceed on the highway.

The minority of the court would hold Pintar negligent as a matter of law. Laufenberg was on an arterial highway and did not forfeit his right-of-way because of his excessive speed. Magin v. Bemis (1962), 17 Wis.2d 192, 199, 116 N.W.2d 129. Having the right-of-way, he was entitled to have the immediate use of his lane of the highway ahead of his car free from obstruction. The distance ahead which is appropriated by this right-of-way depends upon the speed of the car and not the lawfulness of the speed. In Ide v. Wamser (1964), 22 Wis.2d 325, 331, 126 N.W.2d 59, 62, we stated a special dignity was afforded to one who was traveling upon an arterial 'In order to expedite traffic, the law permits drivers on arterial highways to proceed uninterruptedly at a lawful rate of speed with the assumption that other drivers approaching the arterial will yield to them.' Since excessive speed does not forfeit the right-of-way on an arterial, one traveling at an excessive speed may proceed uninterruptedly with the assumption other drivers...