Schroeder v. Kuntz

• Decision Date: 05 May 1953
• Citation: Schroeder v. Kuntz, 263 Wis. 590, 58 N.W.2d 445 (Wis. 1953)
• Parties: SCHROEDER, v. KUNTZ et al.
• Court: Wisconsin Supreme Court

Page 445

58 N.W.2d 445

263 Wis. 590

SCHROEDER, v.KUNTZ et al.

Supreme Court of Wisconsin.

May 5, 1953.

On September 1, 1951, at approximately 7:30 p. m. the defendant Kuntz was driving a platform truck in a westerly direction on State Trunk Highway 17 toward the city of Merrill.The lights on the truck began to dim and finally went out.The defendant traveled between one and two hundred feet from the time the lights started dimming until he stopped his truck, the last few feet without lights.He turned the truck toward the shoulder but stopped with the left rear of the truck extending over the traveled portion of the highway.Kuntz turned off the motor, then looked back and observed that the truck was not entirely off the highway.He saw the light of an oncoming car approaching from the rear, picked up a flashlight, and went back of the truck to warn the oncoming motorist.That car, driven by one Hommerding, passed the truck.

Some distance back the plaintiff, with her husband as a right front seat passenger, was driving west toward the city of Merrill upon the same highway.She dimmed the lights on her car to pass one approaching from the opposite direction and then saw a second motor vehicle approaching from the west.She left her lights on dim but testified that the driver of the second vehicle left his lights on bright and that these lights partially blinded her.She could see the center line of the highway but saw little of the highway ahead of her.She had been driving at a speed of from forty to forty-five miles an hour.She released the accelerator to some extent but testified that she continued west upon her side of the highway for a distance of approximately one thousand feet with the lights of the oncoming vehicle interfering with her vision without applying the brakes.She passed the oncoming vehicle about thirty feet from the truck.She did not see the truck until the lights of the east-bound car had passed.All lights upon the truck were extinguished and the rear of the truck was at such an angle that she did not notice the reflectors on the rear of the truck.She attempted to turn to the left where there was ample room to pass, but the right front of her car collided with the left rear of the truck.As a result of the collision her husband was killed, she was injured, and her car was badly damaged.

This action was started against the defendant Kuntz and his insurance carrier to recover damages.The case was tried to the court and a jury.The jury, by special verdict, found Kuntz causally negligent in respect to the place where he stopped his truck.The jury found that the plaintiff was not negligent as to speed or lookout, but that she was causally negligent in the way in which she managed and controlled her automobile.Eighty per cent of the negligence was attributed to Kuntz and twenty per cent to the plaintiff.Judgment was entered upon the verdict on the 14th day of May, 1952, in favor of the plaintiff and against Kuntz and his insurance carrier.The defendants appealed.

C. J. Crooks, Wausau, for appellants.

Schmitt & Gillickson, Merrill, for respondent.

BROADFOOT, Justice.

The defendants contend that the trial court erred in failing to direct a verdict in their favor; that the plaintiff was negligent as a matter of law in respect to speed and lookout; that the plaintiff as a matter of law was at least as negligent as Kuntz; that the negligence, if any, on the part of Kuntz could not be a proximate cause of the collision; and that the damages are excessive.

On the other hand, the plaintiff contends that there was credible evidence to support the findings of the jury on each issue, including the damages awarded; that the negligence of Kuntz was a proxmiate cause of the collision; that the comparison of negligence was for the jury; and that the damages awarded are not excessive.

Each party cited several cases in support of his position.Each selected one case in particular and expressed satisfaction with some quotations from the opinion.The defendants cite the case of Woodcock v. Home Mutual Casualty Co., 253 Wis. 178, 33 N.W.2d 202, while the plaintiff insists that Brothers v. Berg, 214 Wis. 661, 254 N.W. 384, is squarely in point and should govern this case.

The facts in cases involving a collision between motor vehicles are so dissimilar that we look for principles rather than precedents in the earlier decisions.Each case must be considered upon its own facts.Several cases are cited calling attention to a rule of long standing in this state.The last one is the case of Cook v. Wisconsin Telephone Co., 263 Wis. 56, 56 N.W.2d 494.That decision quoted from Guderyou v. Wisconsin Telephone Co., 240 Wis. 215, 2 N.W.2d 242, as follows [263 Wis. 56, 56 N.W.2d 496]:

'Under these circumstances there was applicable to her conduct in the control and management and the speed at which she continued operating the car, the well established principle that it is the duty of the operator to drive it at such rate of speed that he can bring his car to a standstill within the distance that he can plainly see objects or obstructions ahead of him; and that if he continues to proceed when he is unable to see because his vision is obscured by smoke, or dust or darkness, he is negligent.'

In the Cookcase, supra, the following quotation was also given from Mann v. Reliable Transit Co., 217 Wis. 465, 468, 259 N.W. 415, as follows:

'When the...