Roeske v. Schmitt

• Decision Date: 04 May 1954
• Citation: 64 N.W.2d 394,266 Wis. 557
• Parties: ROESKE et ux. v. SCHMITT et al. HAUGEN, v. SCHMITT et al. TYPER, v. SCHMITT et al. SCHMITT, v. AMERICAN INDEMNITY CO. et al. (three cases).
• Court: Wisconsin Supreme Court

Page 394

64 N.W.2d 394

266 Wis. 557

ROESKE et ux. v. SCHMITT et al.

HAUGEN, v. SCHMITT et al.

TYPER, v. SCHMITT et al.

SCHMITT, v. AMERICAN INDEMNITY CO. et al. (three cases).

Supreme Court of Wisconsin.

May 4, 1954.

Rehearing Denied June 18, 1954.

Three automobiles were involved in an intersection collision which occurred on August 9, 1952 in the daytime. A DeSoto owned and operated by Austin R. Tyrer was being driven north on Highway 51 toward its intersection with County Highway V in Dane County. He had with him as guests Mrs. Tyrer, Myrtle Roeske, Gerald Roeske, Marilyn Roeske, Axel Haugen and Mrs. Axel Haugen. Gerald and Marilyn Roeske and Mrs. Axel Haugen were killed as a result of the collision. The other passengers were injured. A Chevrolet owned by Peter Schmitt and operated by his son, Eloi Schmitt, was being driven east on County Trunk V toward the intersection. In the car as guests were Mr. and Mrs. Peter Schmitt and Margaret, Janet and Lou Ann Schmitt. Mrs. Schmitt, Janet and Margaret were injured. A Mercury owned by Ben Herheim and operated by his wife was being driven north on Highway 51 preceding the Tyrer car.

51 is an arterial highway. Standard stop signs are located on V on each side of 51. The vision at the southwest corner of the intersection was obscured by reason of an embankment, a sign and a cornfield. A driver going north on 51 could not see a car approaching from the west on V until reaching the south line of V.

The jury's findings that Eloi Schmitt as he approached 51 failed to stop and yield the right of way and that he approached and crossed the intersection without maintaining an efficient lookout and at an excessive speed are not attacked. The testimony as to his speed at the time of impact ranges from 25 to 30 miles per hour.

Mrs. Herheim testified that as she approached the intersection ahead of Tyrer her car was going from 30 to 35 miles per hour. There is evidence which permits the deduction that Tyrer was in his left lane at the time of impact and the inference that he was then passing the Herheim car, and that of course he was traveling faster than was Mrs. Herheim. There is also testimony that as Tyrer approached the intersection he was traveling from 50 to 60 miles per hour.

The Schmitt and Tyrer cars collided in the intersection. When it was struck by the Schmitt car the Tyrer car bounded into the air and landed upside down in a ditch 30 or 40 feet northeast of the intersection.

Our statement of the facts is meager, but we believe that we have stated those which are material to the issues presented. Some of them are disputed, but we find nothing in the record to suggest that the jury was not entitled to believe that the accident occurred as we have stated.

All the actions were consolidated for trial and were presented here as one. The jury exonerated Mrs. Herheim. No attack is made upon the findings. Tyrer was found guilty of causal negligence with respect to passing at the intersection and speed.

Judgments were entered upon the verdict as follows: In favor of Ernest Roeske against Eloi Schmitt, Peter Schmitt and Home Mutual Casualty Company for loss of services and society of his wife in the sum of $11,474.47; in favor of Myrtle Roeske against Eloi Schmitt, Peter Schmitt and Home Mutual Casualty Company in the sum of $10,000; in favor of Ernest Roeske and Myrtle Roeske against Eloi Schmitt, Peter Schmitt and Home Mutual Casualty Company for the loss of their minor children in the same of $6,000; in favor of A. A. Haugen in his own right and as surviving husband of Mathilde A. Haugen against Eloi Schmitt, Peter Schmitt and Home Mutual Casualty Company in the sum of $11,535.25; in favor of Marie Louise Tyrer against Eloi Schmitt, Peter Schmitt and Home Mutual Casualty Company in the sum of $23,936.79; in favor of Mrs. Peter Schmitt against Home Mutual Casualty Company in the sum of $8,000; in favor of Margaret B. Schmitt against Home Mutual Casualty Company in the sum of $4,903.30; in favor of Janet Schmitt against Home Mutual Casualty Company in the sum of $1500. Appropriate judgments for contribution were also entered.

The reason why judgments were not entered against Farmers Mutual Automobile Insurance Company, insurer of Schmitt will appear in our opinion.

The Home Mutual Casualty Company had issued a policy of insurance to Austin R. Tyrer. The American Indemnity Company had issued a policy of insurance on the Herheim car. Home Mutual Casualty Company appeals.

McAndrews & Melli, Madison, for appellants.

William L. McCusker, Madison, for Ernest and Myrtle Roeske.

Aberg, Bell, Blake & Conrad, Madison, for Eloi Schmitt and others.

D. V. W. Beckwith and John T. Harrington, Madison, for A. A. Haugen.

Bull & Biart, Madison, for Marie Louise Tyrer.

Hall & Griffith, Madison, for Janet Schmitt and others.

GEHL, Justice.

Appellant contends that the evidence fails to support the finding that Tyrer was passing at the intersection, and that in any event if he was negligent in that respect such negligence was not causal. As appears from our statement of the facts we are satisfied that there is support for the finding of negligence. We agree with appellant, however, that it was not a cause of the collision. By passing the Herheim car he placed his car in his left lane, at most eleven or twelve feet nearer the approaching Schmitt car. Considering the speed at which Schmitt was traveling Tyrer's car would have been struck regardless of his position on 51. His act of passing did not of itself contribute to the collision.

The finding that Tyrer was guilty of negligence with respect to speed is attacked. There was testimony which would have warranted the jury's conclusion that as he entered the intersection he was traveling at the rate of 30 to 35 miles per hour, that he must have been going faster if he passed the Herheim car which was traveling at about that rate, and also that he was going at the rate of from 50 to 60 miles per hour. That he was traveling at the latter rate was testified to by some of the occupants of an automobile following him who said that the automobiles preceding them were moving at about the same rate as they, from 50 to 60 miles per hour.

The statute applicable is sec. 85.40(2)(a) and (b):

'(a) No person shall operate a vehicle at a speed greater than is reasonable and prudent under conditions and having regard for the actual and potential hazards then existing and the speed of the vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care.

'(b) The operator of every vehicle shall, consistent with the requirements of paragraph (a), operate at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a bill crest, when traveling upon any narrow or winding roadway, when passing school children or other pedestrians, and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions.'

If Tyrer was passing the Herheim car at the time of impact, as the jury found he was, he certainly was exceeding the speed of the Herheim car which appellant contends was from 30 to 35 miles per hour and was accelerating instead of reducing his speed. For the purpose of this discussion we shall assume that he was traveling at a rate somewhat in excess of 30 to 35 miles per hour. The jury was warranted in finding that he did not 'operate at an appropriate reduced speed when approaching and crossing (the) intersection'. We so held squarely in Lake to Lake Dairy Co-operative v. Andrews, 264 Wis. 170, 58 N.W.2d 685, 687 which for the sake of brevity we shall hereafter refer to as the Andrews case. In that case one Cenefelt was driving north on highway 96. His truck collided with one being driven east on an intersecting highway. The vision of both drivers was obscured by a cornfield. This court considered that at the time of collision Cenefelt, who had the statutory right of way, was traveling at the rate of from 35 to 40 miles per hour, the lowest rate at which Tyrer could have been found to have been driving. We held that the question of Cenefelt's speed was for the jury. The majority said:

'Whether this was a 'reasonable and prudent' speed and 'an appropriate reduced speed' under the conditions then existing and considering the hazard presented by the cornfield, was a question for the jury. It could well have concluded from all the facts that Cenefelt's speed was appropriately reduced, reasonable and prudent, and that he had the right to rely upon his right-of-way.'

It is interesting to note that the minority would have held in the Andrews case that under the circumstances Cenefelt should have been held negligent with respect to speed as a matter of law.

In Weber v. Mayer, 266 Wis. 241, 63 N.W.2d 318, 323 the identical question was again presented. One Weber was proceeding west on Silver Spring Road, an arterial highway, approaching county trunk Y. A stop sign was located on Y. A cornfield at the southeast corner of the intersection was of sufficient height and density to obscure the view of drivers of vehicles approaching the intersection from the east and south. One Holzhauer approacher the intersection from the south. A collision occurred in the intersection. A jury found Weber causally negligent as to speed and control, and Holzhauer causally negligent as to lookout and control. Holzhauer was found to have stopped for the arterial. This court, by a unanimous decision, held the question of Weber's negligence as to speed was for the jury and said:

'* * * sec. 85.40(2)(b), Stats., requires the operator of a vehicle approaching an intersection to 'operate at an appropriate reduced speed,' and the jury might well have considered that even 35 miles per hour was...