Prunty v. Vandenberg

• Decision Date: 03 October 1950
• Citation: 257 Wis. 469,44 N.W.2d 246
• Parties: PRUNTY, v. VANDENBERG et al. (three cases). METAL MENDING PRODUCTS, Inc., v. VANDENBERG et al.
• Court: Wisconsin Supreme Court

Page 246

44 N.W.2d 246

257 Wis. 469

PRUNTY, v. VANDENBERG et al. (three cases).

METAL MENDING PRODUCTS, Inc., v. VANDENBERG et al.

Supreme Court of Wisconsin.

Oct. 3, 1950.

Everson, Ryan, Whitney & O'Melia, Green Bay, Walter Melchoir, Appleton, Alfred S. Bradford, Appleton, of counsel, for appellants.

Ben G. Slater, Milwaukee, Benton, Bosser, Becker, Parnell & Fulton, Appleton, for respondents.

MARTIN, Justice.

The collision involved herein occurred about ten o'clock on the bright, clear, summer morning of July 17, 1948, in the right angle intersection of state trunk Highway 55 and a town road in the village of Freedom, Outagamie county. The deceased, Felix L. Prunty, was driving his automobile in a southerly direction on Highway 55 at a speed of about forty miles per hour. He was accompanied by his daughter, Pamela, who sat in the middle, and his wife, Marie C. Prunty, who sat on the right side in the front seat. At the point of the accident this black top arterial highway is twenty-four feet wide with a travelable shoulder on the east side four feet in width.

The intersecting town road upon which Vandenberg was driving his truck in a westerly direction was nineteen feet in width. There was a stop sign for westbound traffic situated thirty-seven feet east of the east line of the black top of Highway 55.

Except for a few shrubs and small trees, the lines of vision between the Prunty automobile and the Vandenberg truck were unobstructed as they approached the intersection. The level of Highway 55 is several feet higher than the intersecting town road for a distance of a quarter mile or more north of the intersection. On the northwest corner of the intersection a building located about seventy feet north of the north edge of the town road and within a few feet of the west edge of Highway 55 prevented a clear view by Prunty to his right until he reached a point close to seventy feet north of the intersection.

Both Felix L. Prunty and his daughter, Pamela, were killed in the accident. Thus, the only survivor besides Vandenberg to testify was the plaintiff, Marie C. Prunty.

It is the contention of the impleaded defendant that the evidence fails to sustain a finding of causal negligence as to lookout on the part of the deceased Felix Prunty.

In the absence of evidence to the contrary, the presumption is that the deceased motorist in approaching the intersection exercised ordinary care as to lookout. Ray v. Milwaukee Automobile Ins. Co., 1939, 230 Wis. 323, 327, 283 N.W. 799; Witkowski v. Menasha, 1943, 242 Wis. 151, 163, 7 N.W.2d 612. However, the presumption that a deceased person exercised due care exists only in the absence of evidence as to what the conduct of the deceased actually was and disappears on the introduction of evidence establishing as a fact the negligence of the deceased. Smith v. Green Bay, 1937, 223 Wis. 427, 429, 271 N.W. 28.

Marie Prunty testified that they were looking for a schoolhouse or washroom for the purpose of making a stop for the convenience of the daughter. It is undisputed that near the northwest corner of this intersection was a large white building which to the casual observer driving from the north to the south had the appearance of a schoolhouse having outside toilets. Felix Prunty was on a raised highway and had an opportunity to look to the east and observe for a distance of approximately one-quarter mile. The Vandenberg truck was nine or ten feet high and painted a bright aluminum. It is undisputed that Marie Prunty was looking to the right at the time of the collision, still trying to locate a toilet for her daughter, and that she did not see the Vandenberg truck. She testified:

'Q. Were you conscious of anything happening to the car before the actual impact? A. All I know is that I felt a sudden slowing down of the car and a terrific thud.

'Q. What happened first, the slowing down or the thud? A. The slowing down.

'Q. Were you conscious of that? A. Yes, and then the blinding flash of aluminum, and that's all.'

Very shortly thereafter she was rendered unconscious. She did not state that her husband applied the brakes. It is undisputed that there were no brake marks of any kind on the pavement and that the Prunty automobile was continuing in a due southerly direction. The impact occurred in Prunty's lane of travel. There is no evidence of any exclamation on the part of Prunty, no sounding of the horn, and no sudden swerving. There is no evidence that the Prunty car did anything but continue in a straight path.

The Vandenberg truck was traveling about forty miles an hour before it passed the stop sign but when it entered the intersection and at the time of the impact it was going about twenty-five miles an hour.

It was upon these facts that the jury determined that Felix L. Prunty was causally negligent with respect to maintaining a proper lookout and that his negligence was ten per cent.

It was held in DeKeyser v. Milwaukee Automobile Ins. Co., 1941, 236 Wis. 419, 427, 295 N.W. 755, that the presumption is one of fact and must yield to evidence establishing the contrary, and inference to the contrary may be drawn from the evidence showing the situation although the person against whom the negligence is charged be dead. In Reichert v. Rex Accessories Co., 1938, 228 Wis. 425, 438, 279 N.W. 645, physical facts and photographs were allowed to overrule the presumption. Haase v. Employers Mut. Liability Ins. Co., 1947, 250 Wis. 422, 428-429, 27 N.W.2d 468, was an action arising out of an automobile collision within an intersection in which one driver was fatally injured. It was held that the evidence as to the timely, clear, and unobstructed view which the deceased driver had of the icy condition of the intersection and roadway on which the other car was approaching from the left, and of its skidding and continuing to skid without coming to a stop for the stop sign, and as to the deceased driver's manner of approach and time of application of his brakes, and as to the force with which his car struck the other car, was sufficient to overcome the presumption that the deceased driver exercised due care for his own safety as to lookout and to warrant the jury's finding that he was causally negligent as to lookout.

In the present case the jury might well have reasoned that if Prunty had maintained a proper lookout he would have observed in ample time that Vandenberg's truck was out of control, that it gave no sign of stopping or of application of brakes. The evidence does not disclose that Prunty did anything to protect himself except slow down a split second before the impact. It was within the province of the jury to find that he failed to exercise due care for his own safety by keeping a proper lookout. There is sufficient credible evidence in the record to sustain this finding.

The impleaded defendant relies on a schedule of time, space, and relative positions of the two vehicles to furnish to a mathematical certainty a confirmation of Prunty's diligence as to lookout. The schedule is based on the hypothetical speed of each vehicle at intervals of seconds before the collision. Evidence of speed, time, and distance was necessarily by estimate only and we do not consider that this does or can demonstrate that the collision must have occurred otherwise than as the jury found from the evidence in this case. Kaestner v. Preferred Accident Ins. Co., 1950, 257 Wis. 6, 8, 42 N.W.2d 260.

We have noted the cases cited by impleaded defendant but the facts in each case vary greatly from the facts here where there is sufficient evidence to rebut the presumption of due care with respect to Prunty's lookout.

It is the position of appellants, Vandenberg and his insurer, that Vandenberg was confronted with a sudden emergency not of his own making and that the complaints should be dismissed as to him and his insurer. They take the position under the rule that when one is confronted with an emergency not of his own making he does not have to act with what on calmer reflection would appear to have been the best judgment. Hanson v. Matas, 1933, 212 Wis. 275, 279, 249 N.W. 505, 93 A.L.R. 546; Johnson v. Prideaux, 1922, 176 Wis. 375, 379, 187 N.W. 207.

Vandenberg testified that as he approached the intersection with his loaded truck weighing approximately thirteen thousand pounds, he was traveling at...