Schumacher v. Klabunde

• Decision Date: 05 February 1963
• Citation: 119 N.W.2d 457,19 Wis.2d 83
• Parties: James SCHUMACHER, Plaintiff-Respondent, v. Donald R. KLABUNDE et al., Defendants-Appellants, American Guarantee & Liability Ins. Co., Interpleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 457

119 N.W.2d 457

19 Wis.2d 83

James SCHUMACHER, Plaintiff-Respondent, v. Donald R. KLABUNDE et al., Defendants-Appellants American Guarantee & Liability Ins. Co., Interpleaded Defendant-Respondent.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Kenney, Korf & Pfeil, Elkhorn, for appellants.

Godfrey, Godfrey & Neshek, Elkhorn, for respondent.

WILKIE, Justice.

The sole question on this appeal is whether the trial court erred in directing a verdict excusing Schumacher from negligence on the ground that Schumacher was confronted with an emergency as a matter of law.

Klabunde testified that he was returning from Madison and as he approached Whitewater, Wisconsin, he began to get sleepy. He then opened the window to ward off his drowsiness. Later, when he saw the Schumacher car, he dozed momentarily for a couple of seconds and as he opened his eyes he found that he was drifting into Schumacher's lane. At this time he testified his steering wheel was even with the center line on the highway which would mean that his car was from one and one-half to two feet in the opposite lane. He was heading straight and not slanting further into the opposite lane. He immediately pulled back into his own lane of traffic. All of this took place when a distance of only 300 feet separated the two cars. He was going 45 miles per hour at the time and he estimated Schumacher was going at a high rate of speed.

After Klabunde's car returned to its own lane, and when the cars were 100 feet apart, Klabunde stated that the Schumacher car started to invade Klabunde's lane. At this time, Klabunde testified that he put his foot on the brake and pulled over to the right shoulder traveling a distance of 30 to 40 feet in the interim and reduced his speed from 45 miles per hour to 10 miles per hour. The cars then collided on Klabunde's side of the highway. The collision occurred with such force that Klabunde broke his steering wheel, and his auto was thrown 8 to 10 feet backwards, stopping in his own lane of traffic, angling towards the west shoulder.

Schumacher's car on the other hand went through the west ditch (which would be on Klabunde's side of the road) then back across the highway and onto the east shoulder of the road where it stopped some 328 feet north of Klabunde's auto.

Schumacher testified that he was going 25 miles per hour at the time he first saw the Klabunde car, which he agreed was approaching at 45 miles per hour. At the time of the impact, Schumacher said he was only traveling about 5 miles per hour.

On the night in question, Klabunde had nothing to drink, while on the other hand, testimony established that Schumacher had had three or four beers while bowling, and four more beers after he had finished bowling. Schumacher was at the bowling alley from 7:30 until 12, at which time he stated he went to a cafe and had a snack before driving home. At an adverse examination, Schumacher testified that he left the restaurant at 12:30 and that the accident happened at 12:35, when in fact it occurred at 1:30. He also testified that he did not see or talk to Klabunde after the collision occurred, while Klabunde testified that he went to the Schumacher auto, asked him if he was injured and turned off his ignition. Klabunde stated that Schumacher did not respond to his questions.

Schumacher further testified that when he saw the Klabunde auto 300 feet away, he took his foot off the accelerator, and at a distance of 100 feet, applied his brakes. During that 200 feet, Schumacher said Klabunde was continually drifting into his lane of traffic. When the Klabunde auto was 100 feet away, Schumacher turned to his left into Klabunde's lane. At the adverse, Schumacher stated that he was at a complete stop when he turned into the opposite lane. However, he did not have his foot on the brake at the time of impact, but it was on the accelerator. He said, however, that his car did not speed up following the impact. Schumacher did not know how his vehicle got around the Klabunde auto.

Schumacher also testified that when he first saw Klabunde he was in his own lane. He watched the Klabunde car continuously from the time it was 2,000 feet away until the collision. Just before Klabunde was 300 feet away, Klabunde crossed the center line and even came over with the left wheels of his car on the east shoulder before Klabunde swerved back sharply to his own side of the road. At another point Schumacher testified that it was when Klabunde was only 100 feet away he came over onto the wrong shoulder. At still another point Schumacher testified that the Klabunde car invaded his lane when 200 feet away.

At the conclusion of the trial, the trial court directed a verdict excusing Schumacher, stating:

'* * * At 300 feet on Mr. Klabunde's own story he was straddling the center line a foot and a half to two feet and into Mr. Schumacher's lane of traffic going 45 miles per hour. Mr. Schumacher's testimony was at that time he was going 25 miles per hour so there is a combined speed of 70 miles per hour and a closing of the gap in less than three seconds. If I read the Papacosta case correctly it answers the arguments you have made and which I adopted in that case and I was reversed. You state Mr. Schumacher could have done something,--he could have stopped or stayed in his own lane and this wouldn't have happened, and the supreme court said in reversing me that was hindsight. They said that whenever you get a situation of a three...