Schmidt v. C. Schlei Dray Line, Inc.
| Decision Date | 02 June 1959 |
| Citation | 7 Wis.2d 374,97 N.W.2d 194 |
| Parties | Catherine SCHMIDT, Plaintiff, v. C. SCHLEI DRAY LINE, INC., et al., Respondents, John Schmidt et al., Appellants, Theodore Van Straten et al., Impleaded Defendants. John M. SCHMIDT, Plaintiff, v. C. SCHLEI DRAY LINE, INC., et al., Appellants, Theodore Van Straten et al., Impleaded Defendants-Respondents, and seven other cases. |
| Court | Wisconsin Supreme Court |
Kaftan, Kaftan & Kaftan, Green Bay, for appellant Catherine Schmidt.
Everson, Ryan, Whitney & O'Melia, Green Bay, for respondents.
Everson, Ryan, Whitney & O'Melia, Green Bay, for appellant John M. Schmidt.
Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for respondents.
Schmidt first noticed the grader coming toward him one-half mile away but did not see the semi-trailer until it came about two-thirds into the west half of the road. Schmidt could not estimate that distance from him but the driver of the dump truck estimated that Schmidt was 600 to 700 feet from the Schlei Dray Line vehicle when the latter began to skid. Schmidt drove straight ahead until in an instant before the impact he steered his automobile onto the west shoulder and there collided with the semi-trailer. Schmidt's car struck the other front-to-front with Schmidt's car heading somewhat west of south. Photographs taken at the scene show that the tractor unit was knocked around to the west at right angles to the trailer unit which remained pointing north. The force of this oblique impact permits an inference which corroborates testimony of other witnesses and a statement made by Schmidt to a traffic officer that Schmidt's speed was 25 miles per hour at the moment of the collision. At the trial Schmidt testified that he was practically stopped before the semi-trailer hit him. Schmidt considers the statement is incompetent because at the time he gave it he was in pain and under sedation. Under the circumstances surrounding the taking of the statement, the statement was not incompetent but was a matter of the weight which the jury chose to give it.
No one contends that Vetting is not guilty of causal negligence. The difficult decision is to determine whether the evidence permits the finding that Schmidt was causally negligent. His counsel asserts that Schmidt was suddenly confronted with a horrible emergency alternative and as a matter of law he cannot be found guilty of negligent management and control in choosing his best means of avoiding the collision.
In the complex situation presented by the four motor vehicles, each of which had a part in the accident, the analysis of the testimony and the weight of the evidence are even more than usually proper considerations for the jury rather than for the court. When their findings are to be reviewed in this court the evidence and all reasonable inferences to be drawn from the evidence must be considered from the standpoint most favorable to support the verdict. Henthorn v. M. G. C. Corp., 1957, 1 Wis.2d 180, 184, 83 N.W.2d 759; Olson v. Milwaukee Automobile Ins. Co., 1954, 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740. There is evidence which the jury might believe that Schmidt should or did see that the semi-trailer was heading for the west shoulder when it was 700 feet distant from him, and Schmidt continued to drive toward the semi at a speed of 25 to 35 miles per hour until almost the instant of collision. The failure to reduce speed after a dangerous situation has been sighted is properly a matter of management and control. Jennings v. Mueller Transportation Co., 1955, 268 Wis. 622, 631, 68 N.W.2d 565. Under the circumstances the jury was enabled to find that Schmidt's continued progress at that speed was negligent. It shortened the time for Schmidt to observe and appraise the situation. A longer time given for observation might well show him that the entire west half of the cement highway was unobstructed and that the tractor-trailer was proceeding straight up the shoulder.
By thus contributing to the emergency Schmidt is deprived of the 'emergency' rule. Deignan v. New Amsterdam Casualty Co., 1958, 2 Wis.2d 480, 482, 87 N.W.2d 529; Auster v. Zaspel, 1955, 270 Wis. 368, 71 N.W.2d 417.
There is much conflict in the testimony given by the various witnesses but among the versions of the material facts there is evidence sufficient to take to the jury the question of whether Schmidt's management and control was negligent and, if so, the negligence was causal. We conclude that there is competent, credible evidence to support such findings and we may not disturb them. This determines adversely appellant Schmidt's demand for a new trial on all issues. The trial court's denial of his motion was correct.
Schlei Dray Line interpleaded as a codefendant the owner of the dump truck, Van Straten, his...
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Bielski v. Schulze
...to the left, Bielski is not entitled to the benefit of the emergency rule as he was likewise negligent. Schmidt v. C. Schlei Dray Line, Inc. (1959), 7 Wis.2d 374, 97 N.W.2d 194; Wiley v. Fidelity & Casualty Co. of N. Y. (1958), 3 Wis.2d 320, 88 N.W.2d 366; Jewell v. Schmidt (1957), 1 Wis.2d......
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...have italicized the portion to which plaintiff objects. The italicized portion was taken from the opinion in Schmidt v. C. Schlei Dray Line (1959), 7 Wis.2d 374, 383, 97 N.W. 2d 194. The statement in the opinion on the former appeal "Nor was Holewinski unaware of Magnuson's situation until ......
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