Quady v. Sickl

• Decision Date: 08 January 1952
• Citation: 51 N.W.2d 3,260 Wis. 348
• Parties: QUADY, v. SICKL et al.
• Court: Wisconsin Supreme Court

Page 3

51 N.W.2d 3

260 Wis. 348

QUADY, v. SICKL et al.

Supreme Court of Wisconsin.

Jan. 8, 1952.

Rehearing Denied March 4, 1952.

See 52 N.W.2d 134.

Genrich & Terwilliger, Wausau, Emil A. Wakeen, Walter H. Piehler and Neil M. Conway, of counsel, Wausau, for appellants.

Smith, Okoneski, Puchner & Tinkham, Wausau, for respondent Belden and Continental Cas. Co.

Spohn, Ross, Stevens & Lamb, Madison, Frank A. Ross and James F. Spohn, Madison, of counsel, for respondent David Quady.

GEHL, Justice.

A number of errors are assigned. In our view of the case only one need be considered--the contention that the negligence of the plaintiff must be held as a matter of law to be as great or greater than that of Pankratz. We have held that it is in rare cases where we will disturb a jury's comparison of negligence, and that the instances in which it can be said as a matter of law that the negligence of the plaintiff is equal to, or greater than that of the defendant will ordinarily be limited to cases where the negligence of each is of precisely the same kind and character. McGuiggan v. Hiller Brothers, 209 Wis. 402, 245 N.W. 97. We have also said that 'Where, however, it appears that the negligence of the plaintiff is as a matter of law greater than that of the defendant, it is not only within the power of the court but it is the duty of the court to so hold.' Peters v. Chicago, M., St. P. & P. R. Co., 230 Wis. 299, 283 N.W. 803, 804.

We have also considered the relative negligence of the parties where the respective failures were not of the same kind and character. Zenner v. Chicago, St. P., M. & O. R. Co., 219 Wis. 124, 262 N.W. 581; Sikora v. Great Northern R. Co., 230 Wis. 283, 282 N.W. 588; Patterson v. Chicago, St. P., M. & O. R. Co., 236 Wis. 205, 294 N.W. 63; Nayes v. Milwaukee Electric Ry. & Light Co., 237 Wis. 141, 294 N.W. 812; DuBois v. Johnson, 238 Wis. 161, 298 N.W. 590; Menden v. Wisconsin Electric Power Co., 240 Wis. 87, 2 N.W.2d 856; Dinger v. McCoy Transportation Co., 254 Wis. 447, 37 N.W.2d 26; Gvora v. Carlson, 255 Wis. 118, 37 N.W.2d 848.

No more can be read out of the precedents than that each case must be considered upon its peculiar facts.

We conclude that from his own testimony it appears that the negligence of plaintiff was as a matter of law as great as or greater than that of Pankratz. As he approached the scene he was driving at the rate of about fifty miles per hour; when he was about four blocks away he saw some bright headlights coming toward him; they blinded him; he passed out of the blind area when he first observed the Sickl truck forty or fifty feet ahead of him; he did not decrease his speed before he observed the Sickl truck and went on to say that even after applying his brakes at that point he did not slow down 'up to the time directly before the impact.' He was asked:

'Q. Now, in other words, Mr. Quady, I want you to get this straight: from the time that you were four blocks north of those lights, and they were coming towards you, and as you approached and they became closer to you until you got to a point where they were 60 feet away from you, you were blinded continually by those lights? A. Right.

'Q. And as you approached the lights and they approached you, the blindness became more intense in severity, in other words, it became more severe and caused your vision to be more obscured? A. Right.

'Q. During that time you did not in any way lower your rate of speed, is that correct? A. Right.

'Q. You did not bring your car to a stop, is that correct? A. Right.

'Q. You did not apply your brakes? A. When?

'Q. During that time until the blindness ceased. A. Right.'

'When the situation on a highway is such that one's vision is completely obscured, it is one's duty to slow down or even stop until the cause of such obscured vision is at least in part removal. (Citing cases.) Whether one's vision is completely obscured by blinding lights, dust, or dense smoke seems quite immaterial.'

Mann v. Reliable Transit Co., 217 Wis. 465, 259 N.W. 415, quoted with approval in Guderyon v. Wisconsin Telephone Co., 240 Wis. 215, 2 N.W.2d 242.

The facts in this case with respect to the conduct of Quady are quite similar to those present in Pietsch v. McCarthy, 159 Wis. 251, 150 N.W. 482, where the plaintiff, proceeding at the rate of from ten to thirteen miles per hour, his vision so dazzled by headlights coming in the opposite direction that he could not see defendant's unlighted wagon ahead of him, proceeded in that situation a distance of one hundred feet without reducing his speed until he bumped into defendant's wagon, which he did not see until he struck it. We held there that plaintiff was guilty of negligence as a matter of law. See also Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N.W. 629, 25 L.R.A., N.S., 40.

Upon the question whether Pankratz dimmed his headlights as he approached the scene he...