Olson v. Hermansen

• Decision Date: 18 June 1928
• Citation: 196 Wis. 614,220 N.W. 203
• Parties: OLSON v. HERMANSEN ET AL. MICHELSON v. HERMANSEN ET AL.
• Court: Wisconsin Supreme Court

196 Wis. 614

220 N.W. 203

OLSON

v.HERMANSEN ET AL.

MICHELSON

v.HERMANSEN ET AL.

Supreme Court of Wisconsin.

June 18, 1928.

Appeals from judgments of the Circuit Court for Columbia County; Chester A. Fowler, Circuit Judge. Reversed.

Separate actions by John A. Olson and Sophia Michelson against Melvin Hermansen, Mrs. Melvin Hermansen, and the Wisconsin Automobile Mutual Insurance Company, of Monroe, Wis., to recover damages, in the Olson Case, for the death of plaintiff's wife, and in the Michelson Case, for personal injuries sustained as the result of an automobile accident. From judgments in favor of the plaintiffs, defendants Mrs. Melvin Hermansen and the insurance company appeal.

The plaintiff Sophia Michelson, is the mother of the defendant Mrs. Melvin Hermansen and of the deceased wife of the plaintiff John E. Olson. She lived on a farm about ten miles from Columbus. Mrs. Melvin Hermansen lived on a farm two or three miles distant from the residence of Mrs. Michelson. Mrs. Olson lived with her husband in the city of Madison. On August 22, 1926, Mrs. Olson was visiting with her mother, Mrs. Michelson. A family picnic at the park in Columbus had been planned for that day. About 11 o'clock in the forenoon Mrs. Hermansen called at the Michelson home with a Ford automobile for the purpose of taking Mrs. Michelson, Mrs. Olson, and Mrs. Olson's children to the picnic. Mr. Hermansen was to meet the others at the picnic. The picnic had been arranged for 12 o'clock. At about ten minutes to 12 Mrs. Hermansen left the Michelson home with her new Ford sedan for the picnic. In the sedan was Mrs. Hermansen and her two children. Mrs. Olson and her two children, and Mrs. Michelson. When about a half mile from the Michelson home she approached a team standing ahead of a Ford touring car parked on the left-hand side of the road. As she approached this team and car, two large dogs jumped out from behind the car in front of her car. She involuntarily swerved to the right, as she testified, to avoid striking the dogs. As she swerved to the right, she got beyond the traveled portion of the highway, and as she turned the car to the left to bring it back onto the traveled portion of the highway, her car tipped over, causing the almost instant death of Mrs. Olson and inflicting serious personal injuries upon Mrs. Michelson.

The negligence with which Mrs. Hermansen is charged is that of excessive speed and a failure to exercise ordinary care in the management of her car at the time of the accident. The jury found that she was negligent in both of these respects, which negligence constituted a proximate cause of the injuries, and judgments were rendered in favor of the plaintiffs in each case against Mrs. Hermansen and the insurance company. From such judgments Mrs. Hermansen and the insurance company appeal.

Richmond, Jackman, Wilkie & Toebaas, of Madison (Quarles, Spence & Quarles, Arthur B. Doe, all of Milwaukee, and Philip Snodgrass, of Monroe, of counsel), for appellant Wisconsin Automobile Mut. Ins. Co.

Grady, Farnsworth & Walker, of Portage, for appellant Hermansen.

Olin & Butler, of Madison, for respondent Olson.

OWEN, J.

These actions were consolidated and tried together; they were briefed and argued together in this court, and will be disposed of in a single opinion.

The principal question discussed upon this appeal is whether the evidence sustains the finding of the jury that Mrs. Hermansen was driving her car at an unlawful rate of speed, which at the time was limited to 30 miles an hour. Mrs. Hermansen was examined at great length concerning the rate of speed at which she was driving. She was by no means an adverse witness for the plaintiffs. At one point in her testimony she was made to say that she was driving at 31 miles an hour as she reached the top of a little hill 771 feet from the place of the accident. She testified positively, however, that from that point to the place of the accident she reduced the flow of gas and reduced her speed, and that at the time of the accident she was driving between 25 and 30 miles per hour. In all of the statements made by her to the attorneys for the insurance company prior to the trial she said that she was driving at her usual gait, which was between 25 and 30 miles per hour.

The witness Robert Schnering, who was standing by the team on the left-hand side of the road and observed the approach of the Hermansen car, testified that the car was going between 25 and 30 miles an hour. He based his opinion upon his observation of the car while it was coming the distance of about one block immediately prior to the accident, although upon cross-examination he admitted that it might have been going a couple of miles over 30 miles an hour. However, his estimate of the speed was between 25 and 30 miles an hour. He also testified that she was driving at an ordinary rate of speed and no faster than he had seen her drive many times before.

Jay Bradley, the owner of the team and the dogs, testified that the Hermansen car was going 35 miles an hour. He was coming from his house, about 60 rods beyond the team, and at or just before the time of the accident he was getting into his Ford car. He does not testify how long he observed the Hermansen car, but he does say that he was not concentrating his attention on the approaching car, and that he was not paying any more attention to it than he paid to the average car that he saw pass along the road, although he insists that he thought the car was going pretty...