Roellig v. Gear

• Decision Date: 02 April 1935
• Citation: 260 N.W. 232,217 Wis. 651
• Parties: ROELLIG ET AL. v. GEAR ET AL.
• Court: Wisconsin Supreme Court

217 Wis. 651

260 N.W. 232

ROELLIG ET AL.

v.GEAR ET AL.

Supreme Court of Wisconsin.

April 2, 1935.

Appeal from a judgment of the Municipal Court of Outagamie County; Thomas H. Ryan, Municipal Judge.

Affirmed in part; reversed in part.

Action by Edward G. Roellig and another against Hugh R. Gear and another, commenced March 10, 1934. From a judgment for the plaintiffs, entered June 2, 1934, the defendants appeal.

The plaintiffs, husband and wife, who were riding in an automobile, sue the defendant Gear and his insurer to recover their respective damages for injuries sustained in a collision at a street intersection alleged to have been caused by the negligence of Gear who was driving the car with which they collided. The defendants by cross-complaint against the plaintiff Edward Roellig, who was driving his car, allege negligence on his part, and ask for contribution from him in case the plaintiffMargaret Roellig recovers damages from them.

The defendant Gear was found guilty of negligence in respect to lookout, control, speed, and right of way. The plaintiff Edward Roellig was found not negligent in any of these respects. The plaintiff Margaret Roellig was found not negligent and her damages were assessed at $2,000 for pain and suffering and $791.66 for loss of earnings. Damages of $510.40 were assessed in favor of the plaintiff Edward Roellig. Judgment was entered upon the verdict for the damages assessed and costs.

Bradford, Bradford & Derber, of Appleton, for appellants.

Benton, Bosser, Becker & Parnell, of Appleton, for respondents.

FOWLER, Justice.

The appellants claim that (1) the plaintiff Edward Roellig was negligent as matter of law; and that the court erred (2) in its instructions; (3) in rejecting evidence; (4) in refusing to withdraw a juror; and (5) in not granting relief because the award of damages to the plaintiff Margaret Roellig is excessive.

[1] (1) Roellig was driving east and Gear north. The defendants claim that because of this and other undisputed evidentiary facts Roellig did not have the right of way and knew or should have known that a collision would occur if he proceeded into the intersection, and was thus guilty of negligence as matter of law.

According to Roellig's testimony, it was twilight when the collision occurred. Both cars had headlights burning. A building was under construction near the southwest corner of the intersection. There was a lumber pile east of the building, but Roellig could see over it and it did not obstruct his vision. As Roellig approached the intersection, he looked to his right and saw a long way down the street. He saw no cars coming. As he passed the building, he looked again and saw Gear's car opposite a building 120 feet from the intersection. He did not notice that the car was coming fast. Roellig's front wheels were then on the crosswalk. He had reduced his speed to 10 miles per hour for the crossing. He assumed “the Gear car was traveling within the speed limit.” The speed limit at the place was 15 miles per hour and at that rate it would have taken Gear about 6 seconds to get into Roellig's line of travel. Roellig increased his speed somewhat. He was 40 feet from Gear's line of travel when he first saw Gear, and at 10 miles per hour it would take him about 3 seconds to reach that line. When he reached the center of the street, he saw Gear's car 30 feet away, and noticed it was coming faster than he had thought. He then “stepped on it (the gas) harder” thinking he “had time to get out of his way.” When he noticed Gear's car the second time, he had 16 feet to go to clear Gear's car. Gear struck his right rear wheel with his right front bumper. When the Gear car was 30 feet away, Roellig realized there was going to be an accident. He was then going 15 to 20 miles per hour. He did not swerve or apply brakes to avoid a collision. There were no cars approaching from the north or east to prevent his turning left. He did not apply his horn to warn Gear of his presence. Under this evidence we are of opinion the question of Roellig's negligence was for the jury.

(2) The appellants claim that the court erred in its instructions (a) as to the right of way; (b) in refusing to give an instruction as to right of way requested by defendants; and (c) as to conduct in an emergency.

[2] (a) A question of the verdict was in effect, “Was there a failure by the defendant (Gear) to comply with the law relative to the right of way?” In connection with this question, the court quoted from section 85.18 (1), Stats.: “ Right of way at intersections. When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise provided in this section. The driver of any vehicle driving at an unlawful speed shall forfeit any right of way which he might otherwise have hereunder.” Then followed: “In connection with the above you are instructed that it is only when two vehicles approach or enter an intersection at approximately the same time that a driver to the left is compelled to yield the right of way to the driver at the right. Consequently if the driver to the left approaches and enters the intersection first he is entitled to the right of way.”

The first sentence of this instruction is correct. But the second is erroneous. It does not follow from the first sentence or from the statute that if the driver to the left enters the intersection first, he is entitled to the right of way. This does not follow unless they do not reach the intersection “at approximately the same time.” This error was emphasized by saying in immediate connection: “In this case you will determine from the credible evidence whether or not the automobile of the plaintiff, Edward Roellig, approachedand entered said intersection before the automobile of the defendant, Gear. If you find from the evidence that the automobile of the plaintiff Roellig approached and entered said intersection before the automobile of the defendant, Gear, approached or entered it then you will find that under such circumstances the plaintiff Roellig was entitled to the right of way at said intersection.”

This error was again repeated in the instruction given in connection with the question put as to Roellig's failure to comply with the law relative to right of way: “In connection with any questions submitted with reference to the negligence of the plaintiff, Edward Roellig, you are instructed that if the Roellig automobile approached and entered the intersection first, then you will find that he was entitled to the right of way therein.”

As under the undisputed evidence Roellig did actually enter the intersection first, this was equivalent to instructing that he had the right of way, in absence of a statement that entering first did not give the right of way unless the two cars did not “approach and enter” at approximately the same time. That it might be inferred from the evidence that the parties did enter the intersection at approximately the same time is shown by the testimony of the only disinterested witness who saw the cars before the collision occurred, who said: “The thing that attracted my attention to the Roellig car was that I knew they (the Roelligs) were going to get hit if they kept coming. I knew that right away. I mean that when I saw the big car (Gear's) come off that avenue and the little car near the crosswalk if that car (Roellig's) came out the accident would happen.”

[3] It is true that Gear's right of way by reason of his being to Roellig's right was forfeited by his excessive speed, but that did not give Roellig the right of way if the two cars were “approaching and entering” at approximately the same time. If this were the situation, neither car had the right of way as matter of law. The situation was as it was in Wallace v. Pafke, 201 Wis. 285, 288, 229 N. W. 58.

[4] (b) The appellants further claim that the court erred in refusing to give their requested instruction taken from Wallace v. Pafke, supra: “It may be stated further that the general rule that the first entering an intersection has the right of way has some limitations. It does not justify one first reaching an intersection in going ahead when it is reasonably apparent that a collision will result from so doing. When each driver approaches an intersection with his car in control as it should be, and as it will be if he obeys the statutory provisions, the one who by clear margin enters the intersection...