Pagel v. Kees

• Decision Date: 28 April 1964
• Citation: 127 N.W.2d 816,23 Wis.2d 462
• Parties: Arthur A. PAGEL, Plaintiff-Respondent, v. Michael L. KEES and Integrity Mutual Insurance Company, a domestic Insurance company, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 816

127 N.W.2d 816

23 Wis.2d 462

Arthur A. PAGEL, Plaintiff-Respondent, v. Michael L. KEES and Integrity Mutual Insurance Company, a domestic Insurance company, Defendants-Appellants.

Supreme Court of Wisconsin.

April 28, 1964.

Benton, Bosser, Fulton, Menn & Nehs, Appleton, Peter S. Nelson, Appleton, of counsel, for appellants.

Bonk, Lutz & Hertel, Chilton, for respondent.

HALLOWS, Justice.

The first contention made by Kees is the negligence of Pagel as a matter of law was at least equal to his negligence. Since neither Pagel nor Kees was able to testify as to lookout immediately prior to the collision because of amnesia, both could be found guilty of causal negligence, but in so finding under an ultimate-fact verdict the jury could consider them guilty as to either lookout or management and control, but not as to both, and the jury was so instructed. Winston v. Weiner (1958), 2 Wis.2d 584, 592, 87 N.W.2d 292. With an ultimate-fact verdict, it is impossible for a viewing court to know the particular elements of negligence found by the jury but such a finding is not essential in this case as the specific question is whether the apportionment of the causal negligence is sustained by any reasonable view of the evidence.

Unless Kees was guilty of speed in addition to either lookout or management and control, he had the directional right-of-way and normally would not be charged with greater causal negligence than Pagel. When two drivers approach an intersection under such circumstances that if both continue in the same course and at the same speed a collision will result, it is the obligation of the driver on the left to yield to the driver on the right. Sec. 346.18, Stats. Nessler v. Nowicki (1961), 12 Wis.2d 421, 107 N.W.2d 616; Vogel v. Vetting (1953), 265 Wis. 19, 60 N.W.2d 399. As to Kees' speed, there was testimony by Fred Harder who was driving north 40-45 m. p. h. on the town road, that after he passed the intersection and was 1,450 feet north thereof, he met the southbound Kees traveling at 55-60 m. p. h. Mrs. Harder, a passenger in her husband's car, testified in effect that after meeting the Kees' car they proceeded approximately 400 feet when she looked back to the intersection and saw a big cloud of dust at the intersection.

It is argued that if Harder were going 40-45 m. p. h. and proceeded 400 feet while Kees traveled some 1,450 feet this testimony is incredible because it makes Kees' speed 114 m. p. h. While another jury may well have disregarded the testimony of the Harders, this jury apparently gave it some weight as to excessive speed and forfeited Kees' right-of-way. We cannot say as a matter of law the jury was wrong. Moreover, the jury could have considered the physical facts after the accident. The position of the cars, their damage, and their location from the intersection may be a basis of an inference of speed. Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 101 N.W.2d 83; Mackowski v. Milwaukee Automobile Mut. Ins. Co. (1957), 275 Wis. 545, 82 N.W.2d 906; and Odya v. Quade (1958), 4 Wis.2d 63, 90 N.W.2d 96.

Although Kees was approaching from the right, he was approaching an intersection with his view partly obstructed, at least he could not see what was coming from his left because of the woods until he was 125 feet north of the intersection, at which point he could only see a car if it were 106 feet east of the intersection. Under s. 346.57(2), Stats., Kees was required to drive at a reasonable and prudent speed, having regard for such potential hazard, and consistent therewith was also required under subs. (3) to drive at an appropriate-reduced speed because of approaching the intersection. Johnson v. Fireman's Fund Indemnity Co. (1953), 264 Wis. 358, 59 N.W.2d 660.

Unlawful speed which will forfeit one's right-of-way must be sufficient to ground a finding of negligence as to speed. When such negligence is found on the part of the right-hand driver, neither he nor the left-hand driver has a right superior to the other in entering the uncontrolled intersection. However, there is no evidence indicating Pagel was speeding and there was some evidence which the jury could believe that Kees was negligent as to speed under the existing conditions.

In determining the relative contribution of causal negligence, the jury could consider Pagel's testimony that Kees stated to him in the hospital, 'I see you come by. I got that darn neuralgia I couldn't get my foot up.' It is claimed this testimony should be disregarded because of the mental condition of Pagel. However, the statement was admissible for such weight as the jury chose to give it. Pagel was not incompetent to testify. State v. Schweider (1959), 5 Wis.2d 627, 94 N.W.2d 154. Moreover, the jury could decide whether Kees, in fact, made such a statement in view of his denial and claimed amnesia.

The defendants argue they are entitled to a new trial on the liability issue because of errors in the admission and exclusion of evidence. They contend the testimony of Fred and Marcella Harder as to Kees' speed when they met him about one-fourth mile north of the intersection and while they were traveling at a speed of 40-45 m. p. h. was wholly incompetent and prejudicial and should not have been admitted in evidence. We do not agree. Where one is able to estimate the rate of speed of an oncoming car even though the witness is moving in the opposite direction, the opinion of speed is admissible. Where however, the witness is unable to judge the rate of speed because of his position, the shortness of the observation, lack of reference points, or other reasons, his opinion is of no probative value, and it is error to admit such testimony. The mere fact the speed of a car is estimated by a person who is traveling in the opposite direction on a straightaway does not necessarily render the estimate of speed of no probative value.

True, it is most difficult to judge speed of an oncoming car but we cannot say as a matter of law it never can be done to a probative degree. Whether speed under such conditions can be judged to a probative degree is a question to be determined on the facts of each case. In Fessler v. Northwestern National Casualty Co. (1953), 265 Wis. 14, 60 N.W.2d 387, testimony of speed was not admitted of a witness who was traveling in the opposite direction and had admitted he was in no position to judge speed and could not estimate it. In Maccaux v. Princl (1958), 3 Wis.2d 44, 87 N.W.2d 772, we stated one driver's estimate of another driver's speed when the vehicles are traveling in opposite directions has little probative value but we did not hold such testimony was inadmissible. Where a person was stopped and was able to make an estimate of speed of an oncoming car, the estimate was admissible. In Albrecht v. Tradewell (1955), 271 Wis. 303, 73 N.W.2d 408, a pedestrian's estimate of speed of an approaching car was held admissible in evidence and in Millay v. Milwaukee Automobile Mutual Ins. Co. (1963), 19 Wis.2d 330, 120 N.W.2d 103, we held that an estimate of a driver of a stopped car of the speed of an oncoming car was admissible in evidence.

In La Vallie v. General Ins. Co. (1962), 17 Wis.2d 522, 117 N.W.2d 703, while no attempt was made to give the rate of speed, an observation by the driver of a car of the distance of an automobile behind him going in the same direction was admitted in evidence for the purpose of considering its location in relation to time and place of impact in resolving an issue...