Plog v. Zolper

• Decision Date: 08 October 1957
• Citation: 85 N.W.2d 492,1 Wis.2d 517
• Parties: Henry PLOG, Respondent, v. Earl ZOLPER et al., Appellants.
• Court: Wisconsin Supreme Court

Page 492

85 N.W.2d 492

1 Wis.2d 517

Henry PLOG, Respondent, v. Earl ZOLPER et al., Appellants.

Supreme Court of Wisconsin.

Oct. 8, 1957.

Holden & Schlosser, Sheboygan, for appellants.

Strehlow & Cranston, Kaftan, Kaftan & Kaftan, Green Bay, for respondent.

STEINLE, Justice.

The defendants raise the following questions on this appeal:

Did the court err in failing to submit a question in the special verdict inquiring as to negligence on the part of Henry Plog in respect to right of way?

Did the court err in failing to submit a question in the special verdict inquiring as to negligence on the part of Henry Plog in respect to speed?

Was the plaintiff, Henry Plog, negligent in respect to failing to yield the right of way to the vehicle driven by Vernon Zepnick as a matter of law?

Was the negligence of Henry Plog equal to or greater than the negligence of Vernon Zepnick?

The evidence of the defendants indicates that Vernon Zepnick was driving the Zolper pick-up truck in a westerly direction on East Walnut Street, an artery for through traffic. When approaching South Madison Street, a non-arterial street, the Zolper truck was traveling in the west bound lane of traffic at a speed of 20 to 25 miles per hour. Zepnick first noticed the car driven by the plaintiff Plog when Zepnick was 20 feet east of the east curb line of South Madison Street. Plog's car at that time was proceeding in a northerly direction on South Madison Street, and was emerging from behind a semi-trailer truck which was east bound on East Walnut Street and was traveling at a rapid rate of speed. Upon seeing Plog's car, Zepnick immediately applied his brakes and turned somewhat to the right. The front of the truck driven by Zepnick struck the right side of Plog's car at the middle door post. Zepnick proceeded to drive forward four to six feet after the impact, and brought his truck to a stop east of the center of South Madison Street.

The evidence of the plaintiff, Henry Plog, indicates that Plog stopped his car at the stop sign on South Madison Street just south of East Walnut Street. He was very well acquainted with the intersection, having crossed it many times before. Before making the actual stop at the stop sign, Plog had stopped behind two other vehicles which were also stopped for the arterial,--one a box truck, and the other a yellow car. The box truck turned to the right on East Walnut Street and the yellow car turned to the left on said street.

In part the plaintiff's testimony as to events then occurring, is as follows:

[Direct Examination]

'Q. And when the yellow car went west, on Walnut, what did you do? A. Well, I stopped. I went up to the line, and I looked, looked left and there was nothing coming, and I looked right and I didn't see anything as far as I could see.

'Q. What did you see? A. There was nothing. There was nothing down there. I looked right, and, well, there was nothing coming.

'Q. How far did you see when you looked right? A. Oh, I should judge that would be probably one hundred fifty feet.

'When I was three quarters of the way across the intersection my car was hit in the middle post on the right side. * * * I couldn't tell you that. I couldn't tell you how fast it was coming. * * * There was no car coming. No, I didn't see nothing coming; only that red flash, and I was thrown in the air. I didn't look; I was looking ahead to go across the street * * *

[Cross Examination]

'A. I didn't see nothing until I was hit. * * * 'Q. You wouldn't know how fast you were going? A. I have an eight cylinder Pontiac that gets across pretty fast, as fast as anybody would go across the street. I have gone across that street 40 years * * *

'I was going across the street fast like I always go * * * I told the officer I was probably going 20 m. p. h. I would say 20 miles an hour was my speed * * * I gave the officer my best estimate. As I say, my Pontiac is an eight cylinder, and don't stall around any place. You don't stall around on Walnut Street anyway. * * *

'When the truck came to a stop I think it was about four feet or so into the intersection. * * *

'Q. You waited quite a while to get across the street? A. No, I didn't wait a while--I am not in the habit of waiting. When I cross the street, I want to get across.

'Q. You go right across? A. I go across, yes.'

The plaintiff's evidence also indicated that the front of his car was in line with the north crosswalk at the time of impact. After the impact Plog's car moved in a northwesterly direction, leaving scuff marks eight to ten feet in length. It collided with a vehicle that was stopped at the stop sign at the northwest corner of the intersection. After the collision, the distance between the front of the truck driven by Zepnick and the rear of the Plog car was 25 feet. Plog testified that no vehicle crossed the intersection from west to east at South Madison and East Walnut Streets between the time when he looked to his right for 150 feet and the time when the collision occurred. Plaintiff also testified that the truck operated by Zepnick was stopped about four feet into the intersection of South Madison Street after the impact.

The defendants maintain that the court erred in not specifically submitting for the jury's consideration the matter of plaintiff's failure to yield the right of way. Sec. 85.18(4), Stats.1955, applicable in this case, provides:

'Vehicles stopping for arteries for through traffic. The operator of a vehicle shall stop as required by s. 85.69 before entering an artery for through traffic, and shall yield the right of way to other vehicles which have entered or are approaching the intersection upon the artery for through traffic.'

Sec. 85.69, Stats.1955, (referred to in sec. 85.18(4), Stats., supra) provides:

'Vehicles to stop at artery for through traffic signs. It shall be unlawful for the operator of any vehicle, and every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, to fail to come to a full and complete stop within 30 feet of the near limits of an intersection at which has been erected an official stop sign or traffic signal designating an artery for through traffic.'

Sec. 85.18(4), Stats.1955, was amended by ch. 531, Laws of 1955, and became effective on August 9, 1955. Previous to that time sec. 85.18(4), Stats., read as follows:

'Vehicles stopping for arteries for through traffic. The operator of any vehicle that has come to a full stop as required by section 85.69, upon entering an artery for through traffic, as well as operators of vehicles on such artery for through traffic, shall be subject to the provisions of subsection (1).'

Sec. 85.18(1), Stats., referred to in sec. 85.18(4), Stats., as in effect prior to August 9, 1955, read:

'Right of way at intersections. When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise provided in this section. The driver of any vehicle driving at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder. * * *'

The provisions of sec. 85.18(1), Stats., were not changed by the legislature in 1955 and were effective at the time of the collision in question.

It is the position of the plaintiff that there is no material difference in the controlling language of sec. 85.18(4), Stats.1955, and that contained in sec. 85.18(8) and sec. 85.18(9), Stats.

Sec. 85.18(8), Stats., provides:

'Vehicles emerging from alleys or private driveways to stop. The operator of a vehicle emerging from an alley, private driveway or garage shall stop such vehicle immediately prior to moving onto the sidewalk or sidewalk area extending across the path of such vehicle, or if there is no sidewalk or sidewalk area then before crossing the near limits of the roadway.'

Sec. 85.18(9), Stats., provides:

'Emerging from alley or private driveway. The operator of a vehicle entering a public highway from an alley, garage or private driveway shall yield the right of way to all vehicles approaching on such highway.'

Plaintiff submits that since the language of sec. 85.18(9), Stats., has heretofore received definite interpretation by this court particularly in Carlson v. Strasser, 1942, 239 Wis. 531, 2 N.W.2d 233 and Heinecke v. Hardware Mut. Casualty Co., 1953, 264 Wis. 89, 58 N.W.2d 442, like construction must be placed on the provisions in sec. 85.18(4), Stats.1955.

We concur in the view that the language of the provisions in sec. 85.18(4), is similar in import to that contained in secs. 85.18(8) and 85.18(9), Stats. Our concern is with the construction heretofore placed upon sec. 85.18(9), Stats., in so far as submission in verdict from is concerned.

Plaintiff points out that in Carlson v. Strasser, supra, it was held that when the operator of a vehicle emerging from a private driveway stops at the sidewalk or street, he is bound (1) to maintain a proper lookout so as to ascertain the approach of any vehicles, and (2) having seen the approaching vehicle, he must exercise reasonable judgment in calculating as to his chance of entering the highway without interfering with the approaching vehicle. If he is guilty of negligence in either respect, he cannot be guilty of negligence as to right of way also, for such would be a duplication of negligence, since the omission which brought about the failure to yield the right of way was either lookout or miscalculation.

In Carlson v. Strasser, supra, [239 Wis. 531, 2 N.W.2d 235] the operator of a truck was proceeding from a private driveway onto the highway where a collision with another vehicle occurred. The trial court submitted questions both as to negligence with respect to lookout and negligence with respect to yielding the right of way. The jury found that the operator was negligent as to lookout, but was not negligent in having failed to...