Reynolds v. Madison Bus Co.

• Decision Date: 08 April 1947
• Citation: 26 N.W.2d 653,250 Wis. 294
• Parties: REYNOLDS v. MADISON BUS CO. et al.
• Court: Wisconsin Supreme Court

250 Wis. 294

26 N.W.2d 653

REYNOLDS

v.MADISON BUS CO. et al.

Supreme Court of Wisconsin.

April 8, 1947.

Appeal from a judgment of the Circuit Court for Dane County; Herman W. Sachtjen, Judge.

Reversed.

The action was commenced on October 19, 1945 by Paul N. Reynolds, plaintiff, against Madison Bus Company, a Wisconsin corporation, Herbert R. Amundson, and the American Fidelity and Casualty Company, a foreign corporation, defendants, to recover damages for injuries sustained in a collision between plaintiff's car and a passenger bus owned and operated by Madison Bus Company. The action was tried to the court and a jury and a special verdict rendered. The bus driver was found negligent as to lookout, management and control. He was held not to be negligent as to failure to yield the right of way. Plaintiff was found negligent as to lookout, control, management and right of way, but was exonerated on the charge that he failed to stop for an arterial highway. 55% of the negligence involved was attributed to defendant driver, and 45% to plaintiff. Damages to plaintiff's car, and for hospital and medical expenses were separately appraised and are not in issue on this appeal. The jury appraised plaintiff's damages for personal injury at $2,000. Judgment was entered upon the verdict on June 11, 1946 in the sum of $1,362.16, damages and $210.84 costs. Plaintiff appeals and defendants have filed a motion to review. Hill, Beckwith & Harrington and W. L. McCusker, all of Madison, for appellant.

Schubring, Ryan, Petersen & Sutherland and A. J. McAndrews, all of Madison, for respondents.

WICKHEM, Justice.

Plaintiff appeals from a judgment in his favor and urges numerous errors in support of his contention that a new trial should be ordered. In order to understand the materiality of the errors alleged, in is necessary to review the facts.

The accident happened at 9:30 on the evening of April 11, 1945 at the intersection of South Hancock Street and East Wilson Street in the city of Madison. South Hancock Street runs north and south and East Wilson Street runs east and west. It is a right angle intersection. Plaintiff, sixty-one years of age resides in Madison. He had spent the day in Milwaukee, leaving his car in a parking lot in front of the Franklin Street station of the St. Paul railroad, the grounds of which are bounded on the west by South Hancock Street. On the train he met an acquaintance, Harry Slater, whom he invited to ride home with him after leaving the train. Plaintiff and Slater left the train at the Franklin Street station and went to the car. Plaintiff drove into South Hancock Street and turned right to cross East Wilson Street, it being his intention to reach the west side of town by driving north on Hancock Street for several blocks. East Wilson Street is an arterial street. To the west of the intersection on the south side of Wilson Street business structures are built up to the sidewalk. Plaintiff stopped his car in the vicinity of the stop sign and according to his testimony in such a place that he could see both east and west on Wilson Street. He states that there were cars to his right a long distance away and the lights of an automobile 300 feet west of Hancock Street. After making an observation and concluding that he could safely cross Wilson Street he started his car in low and then shifted to second. His last recollection is that he made this shift of gears and thought he was across the center line of Wilson Street. It was raining but his vision was not obstructed and there were no cars on the south side of Wilson Street to interfere with his vision. He has no recollection of looking to the left after he started into the intersection. He thinks he was traveling about 10 to 12 miles an hour, but it might have been 15 miles an hour. Slater's testimony confirms that of plaintiff in respect of the stopping of the car at the intersection. Slater looked to the right and saw no cars in close proximity but did not look to the left at the time the stop was made at the arterial. According to Slater's testimony plaintiff did not get to a speed of 15 miles an hour prior to the accident, an when hit, plaintiff's car had reached a distance somewhere between 25 and 30 feet north of the south curb. Wilson Street is 40.9 feet wide. When plaintiff's car was between 15 and 20 feet into the intersection, Slater saw the bus when it was from 30 to 50 feet west of the west curb line of South Hancock Street, and at that time Slater did not anticipate a collision. The bus struck plaintiff's car at about the rear fender, spun the car around at least once, and plaintiff was pitched out of the car. Soon after the accident, police officers arrived and in their presence Slater asked the bus driver why he did not come to a stop before he hit plaintiff's car and the driver replied, ‘I didn't see you.’ Upon being asked whether he applied his brakes the bus driver said, ‘No, I didn't see you’. The bus driver testified that he did not travel two seconds after he saw the Reynolds car until the time of the accident. There is evidence that the bus driver's application of brakes and the impact were nearly simultaneous. The speed limit on the street was 25 miles per hour. The night was dark; it was raining, and due to the buildings in the vicinity of the sidewalk the intersection was what might be termed a ‘blind one’.

Numerous errors are assigned by plaintiff and upon a motion to review defendants contend that there was no jury question and that a verdict should have been directed and the action dismissed. In the view that the court takes of the case only two questions need to be discussed at any length and this discussion will incidentally answer defendants' contentions upon their motion to review.

Plaintiff's first contention is that the court erred in not submitting to the jury a question whether the bus driver was guilty of negligence in respect of speed. On this point the evidence of passengers of the bus placed its speed at from 15 to 25 miles per hour. An admission by the bus driver to a police officer after the accident put the speed of the bus at 25 miles per hour. The speed limit on the street was 25 miles per hour. The evidence of Slater, a witness who was sitting to the right of plaintiff, was to the effect that when the Reynolds car was from 15 to 20 feet into the intersection the bus was from 30 to 50 feet west of the near limit of the intersection. At that time plaintiff's car was going from 10 to 15 miles per hour and Reynolds, after leaving the south curb of Wilson Street, went from 25 to 30 feet before being struck. Hancock Street is 34 feet wide between curbs. East Wilson Street is 40.9 feet wide and therefore plaintiff's car had reached a point from 11 to 16 feet from the north curb of Hancock Street before being struck. According to this computation the jury was entitled to believe that when the Reynolds car going 10 miles an hour was about 10 feet from the point of the collision the bus was in the vicinity of 45 feet from the collision. Making the usual allowances for the fact that Slater's testimony consists of estimates (which of course, is also true of the testimony of those who testified directly as to the speed of the bus), the jury could conclude that the bus was going about three or four times as fast as plaintiff's car which would put its speed above that permitted by law. In addition to this the night was dark and rainy and the bus was approaching a blind intersection. We think that there was a jury question whether the speed of the bus exceeded the prescribed limit of 25 miles per hour. In addition to this, due to the conditions of the evening and the visibility of the intersection, a jury could have found that even the speed of 25 miles per hour which they were permitted to find upon the basis of defendants' witnesses was too great in that (1) it impaired the bus driver's ability to see and take precautions at a blind intersection and (2) that under the conditions it may have misled plaintiff into entering the intersection and subjecting himself to the perils of a collision.

In this respect we call attention to the holding in Lang v. Baumann, 213 Wis. 258, 251 N.W. 461, 463, that ‘The establishment of a speed limit for residential districts does not mean that persons driving at less than the permitted speed are as a matter of law exonerated from negligence with respect to speed. The roads were extremely icy, and, even assuming that the jury should not have been permitted to infer a greater speed than twenty miles an hour, they had the right to infer negligence in approaching an obstructed corner on an icy street at that rate of speed.’

Plaintiff's second contention is that there were erroneous instructions upon questions relating to right of way. The court submitted questions as to right of way in respect of both plaintiff and defendants. The questions, stating the master question and the specific questions, together, were, ‘Was the defendant Herbert R. Amundson, the driver of the bus, negligent. * * * (c) As to right of way?’ ‘5. Was the plaintiff Paul N. Reynolds negligent in the operation of his automobile at and immediately preceding the time of this accident. * * * (c) as to right of way?’

The court gave the following instruction in submitting the question relating to the bus driver and referred back to it without repeating it in connection with plaintiff:

‘As to right of way, Section 85.18(1) of our statutes,...