Seitz v. Seitz
| Decision Date | 06 June 1967 |
| Citation | 151 N.W.2d 86,35 Wis.2d 282 |
| Parties | Elizabeth SEITZ, Appellant, v. Frederick SEITZ et al., Defendants, Jerry Smidl et al., Respondents. |
| Court | Wisconsin Supreme Court |
Habush, Gillick, Habush & Davis, Milwaukee, for appellant.
Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for respondents.
Plaintiff seeks a new trial on the following grounds:
(1) The apportionment of negligence is contrary to the evidence.
(2) The trial court permitted improper cross-examination of plaintiff's husband.
(3) The trial court abused its discretion in permitting defendants to amend their answer during the course of trial.
(4) The trial court erroneously excluded certain medical bills.
(5) The trial court committed error in instructing the jury.
(6) The damages awarded are so inadequate as to indicate passion and prejudice on the part of the jury.
(7) The bailiff wrongfully communicated with the jury.
(8) In the interest of justice.
Apportionment of Negligence.
The issue raised regarding the jury's equal apportionment of negligence between Seitz and Smidl necessitates a review of the evidence leading up to the near-collision which caused plaintiff's injuries.
The incident occurred about 11 p.m., April 6, 1962, at the intersection of North 60th street and West Appleton avenue in the city of Milwaukee. North 60th street runs in a northerly and southerly direction while West Appleton avenue runs in a northwesterly and southeasterly direction. Both streets carry four lanes of traffic, two in each direction. The Seitz car driven by Mr. Seitz, in which plaintiff was a passenger, was proceeding in a northwesterly direction on West Appleton avenue. The Smidl car was at the same time proceeding northerly on North 60th street. Smidl was also accompanied by his wife as a passenger.
The traffic control signals which governed the intersection at the time of the nearcollision controlled traffic on North 60th street by means of a flashing red light and traffic on West Appleton avenue by means of a flashing yellow light. Smidl brought his car to a stop in obeyance of the flashing red light. He then proceeded across the intersection which, because of the wide angle at which the two streets intersect, measures 117 feet from the curb line at the southeast corner to the curb line at the northeast corner.
Seitz who was approaching the intersection in the lane nearest the curb brought his car to a sudden stop by forcibly applying his brakes to avoid striking the Smidl car. As a result of the sudden application of the brakes, plaintiff was thrown against the windshield and injured. The windshield, however, was not broken as a result of the impact. There was no collision between the two vehicles. When the Seitz car came to a stop the front of the Smidl car was beyond the north curb line of the intersection with no more than the rear five feet of it within the intersection.
The testimony is conflicting with respect to the distance that separated the cars when Seitz brought his car to a stop. The distance was estimated by Seitz to be three to five feet, by Mrs. Smidl to be 10 to 12 feet, and by Smidl to be 25 feet. Smidl estimated his speed as he crossed the intersection at 20 to 25 miles per hour, while Seitz testified his speed was 25 to 30 miles per hour. The speed limit on West Appleton avenue was 30 miles per hour.
The testimony with respect to the lookout exercised by both drivers is a crucial factor in passing on the apportionment of negligence. While there are some variations in the testimony of both Smidl and Seitz with respect to lookout, we need consider only the testimony which tends to support the verdict. 1 Smidl testified that he looked both directions after bringing his car to a stop before entering the intersection and that he observed the headlights of a car approaching from the southeast about two to two and a half blocks away. Mrs. Smidl estimated the headlights to be a block and a half to two blocks away. Neither Mrs. Smidl nor her husband testified they looked to the right, or southeast, after their initial observation when they stopped for the flashing light, until they heard the screeching of the brakes of the Seitz car.
Seitz testified that when he was a half block or 200 feet from the intersection he saw the Smidl car approach and stop for the flashing signal. He testified further that he thereafter observed a Chevrolet automobile approaching from the north on North 60th street which made a wide sweeping left turn onto West Appleton avenue, and that the left-turning car obscured his vision of the Smidl car. Plaintiff corroborated her husband's testimony with respect to the presence of the left-turning vehicle. Smidl on the other hand testified that he saw no car approaching on North 60th street at the time he stopped and before he proceeded into the intersection. We consider particularly significant the following portion of Seitz's testimony on adverse examination prior to trial:
'Q. Were you at least 200 feet from the Smidl car when you first saw it?
'A. Yes.
'Q. And where was the Smidl car at that time?
'A. He approached the intersection and stopped.
'Q. Now, did you continue to watch the Smidl car?
'A. Not when this--when this car turned, that Chevrolet, then I didn't watch him any more.
'Q. Because the Chevrolet blocked your view, didn't it?
'A. Yes. And I expected him to yield the right of way to me.
'Q. I see. So the next time that you saw the Smidl car would be when?
'A. When it was right broadside in front of me when this Chevrolet has turned.
'Q. Well, now are you saying that you saw the car, the Smidl car for the first time when you were about half a block away?
'A. Yes.
'Q. And are you saying that the next time that you saw it was when it was right in front of you?
The aforequoted portion of Seitz's adverse examination was read to him upon cross-examination. Seitz testified that the answers given were true. Thus neither driver saw the car of the other after making their initial observations before Smidl entered and had practically cleared the intersection.
We turn now to the statutes that fix the rights and duties of the two drivers at the intersection. Sec. 346.39(1), Stats., 2 imposed the same duty upon Smidl approaching the flashing red light as if it had been an arterial stop sign. Sailing v. Wallestad 3 defines that duty as follows:
'The duty to stop at a stop sign is absolute, followed by a duty of lookout, including a calculation of interference with the right-of-way of other vehicles.'
Sec. 346.39(2), Stats., 4 is applicable to Seitz's conduct and, while it permitted him to proceed into the intersection without stopping, it required him to do so 'with caution.' This statute makes it clear that a motorist approaching a flashing yellow light does not have the same right to proceed as does a motorist on an arterial or through highway, or a motorist approaching a green light. Ide v. Wamser 5 holds that a motorist approaching a flashing yellow signal has a greater duty to properly manage and control his car than does a motorist on an arterial highway or a motorist approaching a green light. In Wamser we stated:
'We believe that the legislature intended to impose upon an arterial driver approaching a flashing yellow light a somewhat added caution than that governing other arterial highways.' 6
Decisions which have held that a motorist on an arterial highway has the right to assume that his right-of-way will be respected have invariably held the right to so assume does not excuse the motorist from maintaining a proper lookout. 7
Nevertheless, subs. (1) and (2) of sec. 346.39, Stats., do impose a greater degree of care upon the motorist who, having come to a stop, enters an intersection against a flashing red light than one who enters upon a flashing yellow light. This factor, if both Smidl and Seitz were equally negligent with respect to lookout, would require a finding of a greater percentage of negligence on the part of Smidl. However, there exists a reasonable basis for the jury to have concluded that Seitz was more negligent with respect to lookout. This is the obtuse angle of the intersection which required Smidl to look somewhat to his rear to observe the Seitz car while Seitz could have observed the Smidl car by looking straight ahead. This, coupled with the fact that Smidl traversed 112 feet of the intersection before the Seitz car came to a stop, enters into the comparison of negligence.
While the apportionment of 50 percent of the aggregate negligence to each driver probably is not one this court would have made, we cannot as a matter of law hold it is not supported by the evidence. In Wamser 8 this court let stand an apportionment of 54 percent of the aggregate negligence to the driver on an arterial highway approaching an intersection against a flashing yellow traffic light and 44 percent against the driver proceeding against a flashing red traffic light.
The questions put to Seitz by plaintiff's counsel on direct examination related solely to his driving and observations up to the time he slammed on his brakes. On cross-examination counsel for defendant was permitted over objection to inquire as to what Seitz did after the near-collision. Such questioning disclosed that within a matter of seconds after the near-collision Seitz turned north onto North 60th street, pursued Smidl, and after three or four blocks overtook and stopped him. Thereupon the parties had a discussion, during which Seitz informed the Smidls of the accident, the fact that his wife was injured, obtained from him information about his driver's license and insurance, and requested the Smidls to accompany the Seitzes to the hospital which the Smidls did.
Plaintiff's counsel objected to this line of questioning on the ground that it was without the scope of the direct examination, which objection was overruled. Thereafter plaintif...
To continue reading
Request your trial
-
Marshfield Clinic v. Discher
...Schmidt, 1 Wis.2d 241, 250, 83 N.W.2d 487 (1957); Fischer v. Fischer, 31 Wis.2d 293, 309, 142 N.W.2d 857 (1966); Seitz v. Seitz, 35 Wis.2d 282, 295-97, 151 N.W.2d 86 (1967). 5 Suppose in addition to the husband having agreed to pay, the hospital form requested information about the wife's a......
-
State v. Hubbard
...rests in the sound discretion of the court." Hareng v. Blanke, 90 Wis.2d 158, 166, 279 N.W.2d 437 (1979) (citing Seitz v. Seitz, 35 Wis.2d 282, 300, 151 N.W.2d 86 (1967); Olson v. Siordia, 25 Wis.2d 274, 279, 130 N.W.2d 827 B. State v. Waalen ¶ 30 This court's decision in Waalen is central ......
-
May v. State
...v. Chicago & N. W. Ry. Co. (1952), 262 Wis. 402, 55 N.W.2d 420; State v. Sawyer (1953), 263 Wis. 218, 56 N.W.2d 811; Seitz v. Seitz (1967), 35 Wis.2d 282, 151 N.W.2d 86; and State v. White, supra." Id. at 284, 285, 201 N.W.2d at There was no waiver of counsel's right to be present when the ......
-
Calero v. Del Chemical Corp.
...see that the results attained do not shock the judicial conscience . . .' This statement was cited with approval in Seitz v. Seitz (1967), 35 Wis.2d 282, 302, 151 N.W.2d 86. This was the test applied by the trial court. The judge stated that he considered the award liberal but not conscienc......