Ramsay v. Biemert
| Decision Date | 08 January 1935 |
| Citation | 216 Wis. 631,258 N.W. 355 |
| Parties | RAMSAY v. BIEMERT ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeals from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge. Reversed in part; affirmed in part.
The action was commenced on November 22, 1933, by Kirk Ramsay, plaintiff, against Raymond Biemert and the Ohio Casualty Insurance Company, defendants, to recover for damages sustained in an automobile collision as a result of the alleged negligence of Biemert. Upon motion of Biemert, Ogden Rothe and the Metropolitan Casualty Insurance Company were interpleaded as defendants. Thereafter plaintiff filed an amended complaint alleging negligence on the part of Rothe, and the defendant Biemert filed a cross-complaint asking for contribution. The case was tried to the court and a jury, and a special verdict returned. Defendant Biemert was found negligent with respect to lookout and control, and also with respect to following too closely the vehicle of Rothe. Rothe was found negligent with respect to the position of his automobile as he was intending to turn from Main street into Clay street, but was exonerated from negligence with respect to stopping his car on Main street before attempting this turn. Damages were assessed at $5,000. The court entered judgment upon the verdict in favor of the plaintiff and against both defendants. The judgment also provided for contribution as between the defendants. The interpleaded defendants, Rothe and his insurance carrier, appeal from the judgment in favor of plaintiff, and for contribution. The defendant Biemert and his insurance carrier appeal from the award of damages to plaintiff. The facts will be stated in the opinion.
Chadek & Cornelisen, of Green Bay (M. E. Davis, of Green Bay, of counsel), for appellants Biemert et al.
Coleman & Barry and Wm. Leissring, all of Milwaukee (James E. Coleman, of Milwaukee, of counsel), for appellants Rothe et al.
North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for respondent Ramsay.
On September 25, 1932, plaintiff, who resided in Green Bay, went for a ride with defendant Rothe, in Rothe's car. Plaintiff sat in the folding front seat next to Rothe, who was driving. Plaintiff had recently sustained a broken leg, and had this leg resting against the floor board. After driving for some time, Rothe drove the car back to Green Bay to take plaintiff home. He was driving east on Main street, between Webster avenue and Clay street, when his car was struck in the rear by a car driven by defendant Biemert. Main street runs east and west, and is intersected at right angles at Webster avenue and Clay street; Webster avenue being one block west of Clay street. Main street is 50 feet wide, with a single car track in the center. It has no marked lanes of traffic. When Rothe approached Webster avenue, he stopped there for a traffic light, and then proceeded towards Clay street. The defendant Biemert was driving behind Rothe and in the same direction. By the time he had arrived at Webster avenue, the traffic signal was clear, and he proceeded to cross Webster avenue. He noticed the Rothe car about a block ahead of him. About that time his attention was called to an unusual looking car coming from the other direction, and he turned his head to look at this car. His attention was diverted for about ten seconds, and at that time Rothe's car was 50 feet ahead of him. When he resumed his lookout as the result of a warning by a passenger in his car, he was unable to avoid a collision with the Rothe car. At the intersection with Clay street Rothe desired to turn to his right, slowed down to 5 or 10 miles an hour, and had slightly turned towards the right curb when the Biemert car struck his car in the rear, throwing plaintiff forward and causing a new fracture of his injured leg.
[1] Defendant Rothe contends that the jury's finding of negligence upon his part is not sustained by the evidence. The only respect in which Rothe was found negligent was that he violated section 85.17(1), which provides as follows: “The operator of a vehicle intending to turn to the right at an intersection shall approach the point of turning in the traffic lane nearest the right-hand edge or curb of the highway and in turning shall keep as closely as practicable to the right-hand edge or curb of the highway.”
It is not necessary to determine whether this street had more than one lane of traffic going in the same direction. Assuming that it did, and that the statute applied to one situated as Rothe was, there is clearly no liability. The purpose of the statute was to protect those traveling in the right lane from sudden turns to the right by those traveling a left lane. It was not designed to prevent, nor did its violation cause, the accident here involved. The cars were proceeding in the same direction and substantially in the same line of travel. The evidence is not that Biemert was driving near the curb and that Rothe invaded his path. Rothe had turned his car only slightly to the right, and he was struck in the rear, although, due to the fact that he had begun his turn, the damages were mostly to the right rear portion of his car. The damages to Biemert's car were to the right front portion, indicating that the cars were substantially in line immediately prior to the accident. If there was any causal contribution by Rothe, it was by reason of his decrease in speed, and the jury exonerated him from negligence in this respect. Hence upon Rothe's appeal the complaint must be dismissed, first, because the jury had exonerated him with respect to stopping, and, second, because there is no causal relation between his violation of the statute, if he did violate it, and his duty to Biemert and the plaintiff.
Upon Biemert's appeal, no issue is raised as to negligence; it being conceded that this presented a jury question.
[2] The contention is made that the damages are grossly excessive and that error was committed in the submission of the cause. Plaint...
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