Riehl v. De Quaine
| Decision Date | 28 April 1964 |
| Parties | Armilia RIEHL et al., Appellants, v. Darrel J. DE QUAINE et al., Respondents. |
| Court | Wisconsin Supreme Court |
Bittner, Petitjean & Greenwood, Green Bay, for appellants.
Kaftan, Kaftan & Kaftan, Green Bay, for respondents.
Plaintiffs raise these two contentions on this appeal:
(1) Mr. Riehl was confronted with an emergency and should be absolved of any negligence as a matter of law.
(2) Mrs. Riehl is entitled to a new trial in the interest of justice because the damages are inadequate.
Emergency Issue.
The accident giving rise to Mrs. Riehl's injuries occurred at about 8:30 P.M. on Walnut street, which runs in an easterly and westerly direction between the intersections of such street with Jefferson and Adams streets. The Riehl car was traveling westerly and the De Quaine car easterly. Mrs. Riehl was sitting in the right front seat and another couple who were passengers, in the rear seat. De Quaine, at the time, was sixteen years old, having procured his driver's license about a month before the accident. He was alone in his automobile.
Prior to the accident the Riehl car had come to a full stop at the Jefferson street intersection and the De Quaine car had done likewise at the Adams street intersection. Both stops were made because the stop and go lights at these two intersections were on red. The two stop and go lights turned green at about the same time. Walnut street has four traffic lanes, two in each direction. Both cars as they approached each other were in their respective inner traffic lanes next to the centerline. The Riehl car did so through choice while the De Quaine car was compelled to use the inner lane because another car was proceeding approximately abreast of it in the outer east bound lane.
The De Quaine car swerved over the centerline and its left front struck the left front of the Riehl car a glancing blow and then scraped along its left side. The point of impact was approximately three feet to the north of the centerline. Riehl testified he was traveling approximately 15 miles per hour when he saw the De Quaine car start to cross the centerline. Riehl applied his brakes and stated he had brought his car to a stop just prior to impact. De Quaine testified he was traveling 15 miles per hour and had just shifted into second gear when the car to his right made contact with his front bumper and 'cut me off in front.' De Quaine 'moved over a little,' meaning he swerved to his left, and the accident happened. The import of his testimony was that he was forced across the centerline by the car on his right. He estimated that about half of his car was on the left side of the centerline at time of impact. When asked, if he had made an effort to get back on his own side of the street, De Quaine replied, '* * * he was on my right; I had no time to move back before the impact.'
If both vehicles were traveling at a speed of 15 miles per hour at the moment when the De Quaine car crossed the centerline, their combined speed was 44 feet per second. Therefore, if the Riehl automobile was then but 50 feet distant, Riehl would have only slightly in excess of one second within which to take some action to avoid a collision if both vehicles had continued at the same speed. Allowing time for the bringing of the Riehl car to a stop would not likely prolong such intervening period to a maximum of two seconds. In Havens v. Havens (1954), 266 Wis. 282, 63 N.W.2d 86, 47 A.L.R.2d 1, a driver in a somewhat analogous position to Riehl was held to be confronted with an emergency as a matter of law where the interval afforded for action was a maximum of three and a half seconds. More recently a maximum period of three seconds within which to react to an invasion of a driver's lane of travel by another vehicle was held to create an emergency. Schumacher v. Klabunde (1963), 19 Wis.2d 83, 119 N.W.2d 457. See also Papacosta v. Papacosta (1957), 2 Wis.2d 175, 85 N.W.2d 790.
Defendants attach some significance to Riehl's testimony that when he first saw De Quaine invade the north half of the street Riehl thought De Quaine would get back to his own side, but 'when I seen that he was not going to get out of my way I stopped.' We do not deem that this evidence is sufficient to warrant the inference that Riehl was afforded such length of time in which to act as would make the emergency rule inapplicable. Defendants urge that Riehl should have turned his vehicle to the right in an attempt to avoid a collision instead of proceeding straight ahead and applying his brakes. The answer to this argument is the statement made in Klas v. Fenske (1946), 248 Wis. 534, 546, 22 N.W.2d 596, 602:
'It is the well settled law of this state that an automobile driver who by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice.' (Emphasis supplied.)
Defendants contend, because the point of impact disclosed that Riehl had traversed approximately two thirds the distance from Jefferson to Adams streets and De Quaine but one third of such distance, this establishes Riehl was traveling twice as fast as De Quaine. While the stop and go lights at both intersections may have been activated from red to green at the same instant, there is still the possibility that Riehl may have started forward before De Quaine. We find nothing in the instant record which would support a finding of illegal speed on the part of Riehl.
Defendants further argue that the jury may have predicated their finding of causal negligence against Riehl on the fact that he drove in the inner of the two west bound traffic lanes, two feet from the centerline, when the outer traffic lane was open to his use. He was entitled to use either of the two lanes and it was not negligent for him to drive as he did in the inner west bound traffic lane until such time as he perceived the De Quaine car invading his lane.
Lastly, defendants urge that, if Riehl was confronted with an emergency as a matter of law, so was De Quaine. This argument assumes that the jury must accept as a verity De Quaine's testimony that the car to his right forced him over the centerline in order to avoid a collision with that vehicle. Riehl testified that, while he saw the other car to the right of the De Quaine car, he did not observe such car turn toward the latter. De Quaine testified that there was contact made by this other car and his front bumper and that he showed a police officer paint on his bumper when this occurred. The police officer denied observing any paint on the bumper of De Quaine's car. We conclude that this was not a situation where the jury was compelled to accept De Quaine's testimony as a verity.
We determine that Riehl was confronted with an emergency as a matter of law, and, therefore, the jury's finding of causal negligence on his part is not supported by the evidence.
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