Papacosta v. Papacosta

• Decision Date: 05 November 1957
• Citation: 85 N.W.2d 790,2 Wis.2d 175
• Parties: Rosemary Spellman PAPACOSTA, Respondent, v. Gust PAPACOSTA et al., Appellants, Robert Dabson et al., Defendants.
• Court: Wisconsin Supreme Court

Page 790

85 N.W.2d 790

2 Wis.2d 175

Rosemary Spellman PAPACOSTA, Respondent, v. Gust PAPACOSTA et al., Appellants Robert Dabson et al., Defendants.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Rehearing Denied Jan. 7, 1958.

Schlotthauer & Jenswold, Madison, for appellants.

Gene J. Fleming, Madison, for plaintiff.

Godfrey & Godfrey, Elkhorn, for Robert Dawson and the Western Cas. & Surety Co.

BROWN, Justice.

After the collision the plaintiff married the driver of the automobile in which she was a passenger but for convenience she will be referred to here as Miss Spellman, which was her name at the time of the accident. The respective insurance companies are not necessary to a statement of facts material to this appeal and reference to them will be omitted.

The collision took place at a curve where Highway 12, running generally northwest and curving westerly, enters the city of Whitewater. Papacosta, with Miss Spellman as his guest, was driving on highway 12 toward Whitewater. Driving on highway 12 in the opposite direction was the defendant, Dabson. As Dabson entered the curve which, for him, bore to the right, he failed to stay in the right lane of traffic but crossed the centerline, invading Papacosta's traffic lane and there collided with the Papacosta automobile. Dabson's speed was about 50 miles per hour and he fell asleep at the time when he entered the curve. His causal negligence, which the jury estimated at 85 per cent of the total, is conceded.

By a special verdict the jury found Papacosta guilty of 15 per cent causal negligence in management and control.

Papacosta testified that when he first saw the Dabson car he realized that it would not be able to make the curve and stay in its own lane at the speed at which it was traveling and that it did not slow down, yet Papacosta proceeded without change in his course and did not reduce his own speed which was 25 miles per hour.

A chart was received in evidence on which the positions of the two automobiles at various times was marked, as well as the point of collision. From the diagram and the testimony Dabson's counsel is able to present, a situation which the jury might accept that when Papacosta [against whom no negligence in lookout was found] first saw Dabson the automobiles were 145 feet apart and were approaching each other, Dabson at a speed of 23 1/3 miles per hour and Papacosta at a speed of 25 miles per hour, and these speeds did not change before the cars collided. Respondent Dabson also points out that at the place of collision there is a large parking lot in the east side of the highway into which Papacosta might have turned. At a combined speed of 48 1/3 miles per hour the initial distance between the cars of 145 feet would be reduced to zero in something less than three seconds.

Respondent-plaintiff's counsel arranges the statistics differently, accepting Dabson's speed at 50 miles per hour in order to charge Papacosta with early notice that Dabson could not round the curve properly. Starting from the standpoint of a known speed, he reasons that Papacosta first saw the Dabson car when it was 255 feet from him. At the speed so chosen the automobiles would consume that distance and collide in less than three seconds. Taking the most favorable distance, as urged by respondent-plaintiff, 255 feet, and the most favorable speed, as urged by respondent Dabson [23 1/3 miles per hour for Dabson and 25 miles per hour for...