Schultz v. Miller

• Decision Date: 15 June 1951
• Citation: 48 N.W.2d 477,259 Wis. 316
• Parties: SCHULTZ et al. v. MILLER et al.
• Court: Wisconsin Supreme Court

Page 477

48 N.W.2d 477

259 Wis. 316

SCHULTZ et al. v. MILLER et al.

Supreme Court of Wisconsin.

June 15, 1951.

Kivett & Kasdorf, Milwaukee, J. Arthur Moran, Delavan, of counsel, for appellants.

John Morrissy, Lake Geneva, for plaintiffs.

McCue, Regan & McCue, Milwaukee, and Crosby H. Summers, Janesville, for Lenon & Milw. Auto Ins. Co.

Emmet Horan, Milwaukee, for Globe Indemnity Co.

MARTIN, Justice.

This action grows out of an automobile accident that occurred at about 8:30 a. m. on August 11, 1948, in the city of Lake Geneva, Wisconsin.

Plaintiffs had taken their automobile to the Lenon garage in Lake Geneva for repairs to the speedometer. Because the repairs could not be made immediately, Jack Abbott, an employee of the garage, after obtaining permission from his employers or at their suggestion, offered to drive the plaintiffs home and return the automobile for repairs. The plaintiffs accepted, and Abbott drove the automobile out of the garage and north on Broad street which is approximately sixty-six feet wide. He had gone a few blocks when he collided with the automobile of R. W. Miller, who had been driving south and turning left to go east onto Dodge street, which is about thirty feet wide.

The jury verdict, which was approved by the trial court, found defendant R. W. Miller causally negligent with respect to lookout and with respect to turning to the left at the intersection across the pathway of the automobile operated by Jack Abbott without affording a reasonable opportunity to Jack Abbott to avoid a collision; Jack Abbott was exonerated of negligence with respect to lookout; and one hundred per cent negligence was attributed to Miller. In addition to medical expenses and damages to clothing and the automobile, which amounts were answered by the court, damages assessed to the plaintiff S. E. Schultz, were: Loss of his wife's services and assistance, $3,080; Loss of his earnings, $490; His personal injuries, $50. Plaintiff Ruth Schultz was awarded $12,000 for personal injuries.

Aside from the issues relating to damages, the single issue before this court is whether Abbott was negligent as to lookout as a matter of law.

R. W. Miller testified that he was traveling between fifteen and twenty miles an hour approximately six feet to his right of the center line on Board street as he approached the intersection; that it was raining and before the collision he projected his head out of the window and looked back because he could not see through the rear view mirror due to the fog; that it was while he was in the act of looking to the rear for traffic approaching from that direction that he started to make the turn to the left; that he had given no signal of any kind with his hand for the purpose of indicating a turn; that he was in the act of turning across the intersection and had already partially completed his turn as he turned around and looked to the front again after he had made his observation to the rear and that was the first time he saw the Schultz automobile which was then fifteen feet in front of him. He testified that he could not remember whether the turn he made was a sharp turn.

The testimony of Jack Abbott established that he saw Miller's car coming down the street before it entered the intersection and saw it turn into his car when it was about eight or ten feet away. He testified that he was familiar with the intersection and was driving approximately fifteen or twenty miles an hour about six feet to the right of the center line of Broad street as he approached the intersection.

'Q. And the reason you didn't apply the brakes sooner was the fact you didn't see the other car sooner, is that right? A. How do you mean that?

'Q. The reason--A. (interrupting and continuing previous answer): I saw Mr. Miller coming down the road ahead of me but I didn't expect him to turn in front of me.'

Abbott did not testify positively that he did not see Mr. Miller extend his head out of the window. He merely stated that he could not say for sure. He testified that there was other traffic going south prior to the time of the collision.

'Q. Where was the Miller car the first time you saw it? A. I would say approximately twenty feet north of the intersection,--something like that,--I wouldn't be sure.

'Q. Isn't it a fact you didn't see Mr. Miller's car until it was about eight feet from you? A. When he was coming into me that's right.

'Q. The first time you saw him he was about eight feet away from you? A. When he was coming into me, yes, but naturally I saw the car down the road ahead of me.'

A witness, Don Focht, who was working on a building on the southeast corner of the intersection, testified that he was standing at a place about fifty feet from the south edge of Dodge street; that he saw the Schultz car going north at the rate of fifteen to twenty miles an hour on the righthand side of the center line; that he did not see the Miller car until the moment of impact and the collision occurred north of the center line of Dodge street. He insisted upon the truth of the latter statement, testifying that a statement which he had given to the defendant prior to trial was erroneous in this regard.

S. E. Schultz testified that when he first saw Miller's car coming Miller's head was out of the window looking back; that at that time the Schultz car was past or north of the center line of Dodge street and Miller's car was turning sharply into them and was about ten to twelve feet in front of them. He stated that he did not think Abbott had time to apply the brakes before the collision.

The law is well established that the credibility of the witnesses and the weight to be attached to their testimony are for the jury.

Specific requirements with respect to signals of intention to turn were enacted into law by the 1949 legislature but these sections were not in force and effect at the time of this accident. The applicable statutes, which remain the same now as they were at the time of the accident, are secs. 85.17(2), 85.18(1), and 85.18(5), Stats. These read as follows:

'85.17(2) TURNING LEFT. The operator of a vehicle intending to turn to the left at an intersection or into a private highway shall make such turn from the traffic lane immediately to the right of and next to the center of the highway and shall pass immediately to the left of the center of the intersection, passing as closely as practicable to the left of the center of the intersection, and shall leave the intersection immediately to the right of the center of the intersecting highway.'

'85.18(1) * * * The driver of a vehicle approaching but not having entered an intersection shall yield the right of way to a vehicle within such intersection and turning therein to the left across the line of travel of such first mentioned vehicle; provided, the driver of the vehicle turning left has given a plainly visible signal of intention to turn as aforesaid.'

'85.18(5) * * * The operator of a vehicle within an intersection intending to turn to the left across the path of any vehicle approaching from the opposite direction, may make such left turn where it it permitted only after affording a reasonable opportunity to the operator of such vehicle to avoid a collision.'

Most of the authorities cited by appellants do not consider the right of the parties under the foregoing statutes, which are applicable in this case. For instance, De Baker v. Austin, 1939, 233 Wis. 39, 287 N.W. 720, involved an accident where the defendant motorist turned left across a highway in front of an oncoming car in order to enter a private driveway, and is not a case which involved a motorist who turned left as in the instant case, across an intersection in the path of an oncoming vehicle. Other cases cited involve a collision between two automobiles approaching an interesection at right angles and are not analogous to the situation now under consideration.

The evidence herein clearly demonstrates that Abbott made at least two observations before the collision occurred and each time observed the Miller car--the first time that he saw Miller's car was when it was twenty feet north of the intersection and then when Miller turned toward him and was 'coming into him' when Miller was about eight feet away. It was then too late for Abbott to make any effective effort to avoid the collision. This is not a case where the driver failed to see that which was already in sight, as contended by appellants.

Hansen v. Storandt, 1939, 231 Wis. 63, 67-70, 285 N.W. 370, and Lurie v. Nickel, 1940, 233 Wis. 420, 424, 289 N.W. 686, construe the statutes here involved. Hansen sustained injuries arising out of a collision which occurred when Storandt turned left at an intersection just as he was meeting an automobile driven by one Wittmer, approaching from an opposite direction, and with whom Hansen was riding as a guest. The court held that sec. 85.18(1), Stats., gives the right of way to the driver who is making a left turn only if the latter gives a plainly visible signal of intention to turn, but that such a right of way does not permit such driver turning left to proceed carelessly or recklessly into the path of another car, under circumstances which gives the other car an inadequate opportunity to avoid a collision. (In the instant case it is undisputed that Miller gave no signal with his hand so the Miller did not have the right of way.) The court held, as a matter of law, that Wittmer, who was approaching the intersection and in the same position as Abbott herein, was not liable in damages to the plaintiff. It appeared that there was another car approaching on Wittmer's right, to which he directed some of his attention, and the court stated:

'Undoubtedly, Wittmer had to direct some of his attention to this car, but this by no means warrants the inference that he did not see the Storandt car. He claims that he did see it. It is true that the jury might reasonably...