Phillips v. Haring
Decision Date | 20 June 1952 |
Citation | 262 Wis. 174,54 N.W.2d 200 |
Parties | PHILLIPS, v. HARING. |
Court | Wisconsin Supreme Court |
Action for personal injuries and property damage arising out of a collision between plaintiff's automobile and defendant's tractor-trailer unit at the intersection of a town road and Highway 75 in Kenosha county. The case was tried to the court and a jury; a special verdict was returned finding each party causally negligent and apportioning the negligence fifty per cent to the plaintiff and fifty per cent to the defendant. On motions after verdict the trial court granted a new trial and from an order granting a new trial, defendant appeals.
The accident occurred on a clear bright day and the pavement was dry. Both vehicles were traveling north on Highway 75, which has a twenty foot wide blacktop roadway, the plaintiff following the defendant's truck. Plaintiff first sighted defendant's unit, a red vehicle thirty-five feet long, about a mile south of the intersection when the two vehicles were approximately a mile apart. His view of the truck was unobstructed except for a few seconds at a point 1700-1800 feet south of the intersection where the truck went over a rise. Plaintiff came over the rise at about forty-five to fifty miles per hour and saw the truck about half way down the grade toward the intersection. Defendant testified he had been proceeding at a rate of twenty-five to thirty miles per hour and began to slow down about 300-350 feet south of the intersection, so that when he was about twenty-five feet from the intersection his speed was between five and ten miles per hour. Plaintiff made no estimate of the speed of the truck but knew he was steadily gaining on it. Plaintiff's son, who was a passenger in the car, estimated the speed of the truck at fifteen miles per hour at it entered the intersection although he was 'not in a position to positively tell that.' The truck was completely in the right lane of travel, its left wheels to the right of the center line. Plaintiff first noticed the truck slowing down when it was about 150 feet from the intersection and at that time he was about 100 feet behind and traveling at about thirty miles per hour.
When the front of the truck was about even with the center line of the westerly town road it began a left turn. Plaintiff was then about sixty feet behind and traveling around twenty-five miles per hour. When the truck turned plaintiff applied his brakes and blew his horn. He also turned right in an attempt to avoid hitting the truck. The impact was between the left side of plaintiff's car and the tailgate of the truck which extended straight out at the rear three feet beyond the body of the truck.
Skid marks made by the left tires of plaintiff's car extended from a point approximately thirty feet south of the point of impact at which they measured two or three feet to the right of the center line and ran up to the point of impact where they were about four feet from the center line.
Defendant at no time gave a signal of his intention to turn left. He testified that he began to apply his brakes when he was about 300 feet south of the intersection; that he had a vacuum control on the trailer brakes which operated the stop lights. He also testified that the stop lights at the rear of his vehicle were working immediately after the accident; but plaintiff testified that he did not see them light up at any time prior to the impact.
Defendant testified that he made two observations to the rear after coming over the crest of the hill, before he made his turn, and saw no vehicles behind him.
At the conclusion of the testimony defendant moved for a directed verdict. This was denied by the court.
During a recess after the close of the testimony and before arguments to the jury, one of the jurors met defendant's attorney outside of the courtroom and asked if he represented the insurance company. The attorney answered 'No.' Such answer was made because it had been agreed upon between the parties at the beginning of the trial that there would be no reference to insurance since there were insurance companies on both cars interested in the case but they were not parties to the action. Immediately upon opening of court after the incident occurred, defendant's counsel reported the matter to the court and plaintiff's attorney in the absence of the jury. A motion for mistrial was made and denied by the court with the comment, 'You can take all that up later on.'
The jury found defendant negligent with respect to lookout but that such negligence was not causal. The court found defendant causally negligent as a matter of law for failing to give a proper signal of his intention to turn left. It also found defendant negligent with respect to his position upon the highway immediately prior to his turning left, but the jury found such negligence not causal. Plaintiff was found causally negligent with respect to management and control of his automobile, and the negligence was apportioned fifty per cent to the plaintiff and fifty per cent to the defendant.
Upon motions after verdict the trial court set aside the verdict and ordered a new trial in the interests of justice based upon the communication between the juror and defendant's attorney.
Quarles, Spence & Quarles, Milwaukee (Arthur Wickham and Edmund W. Powell, Milwaukee, of counsel), for appellant.
Lowry & Hunter, Waukesha, for respondent.
On the question of plaintiff's negligence, these facts from his own...
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