Siegl v. Watson

• Decision Date: 13 November 1923
• Parties: SIEGL v. WATSON.
• Court: Wisconsin Supreme Court

181 Wis. 619

195 N.W. 867

SIEGL

v.WATSON.

Supreme Court of Wisconsin.

Nov. 13, 1923.

Appeal from Circuit Court, Milwaukee County; G. N. Risjord, Judge.

Action by Adolph C. Siegl, administrator, against Ernst Watson. From an order granting a new trial, defendant appeals. Reversed, and cause remanded, with directions.

Action to recover damages for the wrongful death of plaintiff's decedent. On the evening of December 21, 1920, plaintiff's decedent was riding a bicycle in a westerly direction on what is known as the Bluemound road in the county of Milwaukee. It was a stormy night. The wind was high, and snow and rain filled the air. The road, which was of concrete construction, was wet and slippery. The defendant was driving in the same direction in an automobile, and in due time overtook the deceased. The snow and rain, according to his testimony, drifted in a sheet in front of the automobile. He was driving slowly, at the rate of 10 or 12 miles an hour. He first dimly saw the deceased when he was about 50 feet distant from him. Owing to the rain and snow obscuring his vision he could see the object but indistinctly at first. He gradually overtook the deceased, turned to the left in order to pass him, proceeding at the aforesaid rate of speed. When he was about 12 feet distant from the deceased, the poncho which the latter was wearing was caught by the wind and suddenly spread out “like a flag” toward the course defendant was going, according to his testimony. The defendant, not realizing just what had happened, became confused, and instinctively applied the brakes, causing the automobile to skid in such a manner that the rear end thereof struck the bicycle, causing injuries to the deceased, from which he died.

The complaint charged the defendant with negligence, in that he did not keep a proper and sufficient lookout so as to avoid the accident and injury; that he ran his automobile at an excessive rate of speed; that in attempting to pass the deceased he did not give him half of the roadway; that he did not stop his automobile in time to avoid the accident and injury to the deceased; that he negligently and carelessly applied the brakes so as to cause the automobile to skid; that the automobile was not equipped with headlights sufficient to enable the defendant to clearly distinguish a person 200 feet ahead; that it was not operated at such a rate of speed as to enable the defendant to stop within a distance a person could by the headlights be seen; that he failed to give deceased sufficient warning of his approach; that he failed to have adequate and sufficient brakes, and to keep the same in first-class mechanical condition; and that he failed to do all things necessary in the operation of said automobile to avoid striking and injuring the deceased.

There was a trial before a jury, and a special verdict returned, by which it was found that the defendant did not fail to exercise ordinary care in the operation and management of his automobile at and immediately prior to the time of the accident. Upon motion of the plaintiff, the court granted a new trial, for reasons that will appear in the opinion. From such order the defendant appealed.Quarles, Spence & Quarles, Arthur B. Doe, and Arthur Wickham, all of Milwaukee, for appellant.

William L. Tibbs, George H. Daum and Daniel W. Sullivan, all of Milwaukee, for respondent.

OWEN, J. (after stating the facts as above).

It will be observed that the plaintiff charged the defendant with a violation of nearly every duty which the law lays upon the drivers of automobiles. The issues raised were thoroughly litigated at the trial, and the jury found the defendant free from negligence. The trial court correctly and sufficiently informed the jury in the charge concerning the various duties which the law imposes upon the drivers of automobiles under such circumstances, unless it be in a single respect.

[1] The plaintiff contends that the statute required the defendant to give the deceased one-half of the concrete roadway, which is estimated at from 15 to 18 feet in width, at the time he attempted to pass him. This contention is based upon the provisions of section 1636--49, which provides that the operator of an automobile shall observe the rules of the road by keeping to the right upon meeting vehicles, and by passing to the left of all vehicles overtaken in any public highway of this state, and at all times giving to the vehicle passed or overtaken or seeking to pass said vehicle one-half of the road. It is plaintiff's contention that this provision requires the driver of an automobile, when seeking to pass another vehicle on a broad, concrete roadway, to turn to the left of the center of such concrete roadway, and that, if the defendant failed to turn to the left of the center of the concrete roadway when he attempted to pass the bicycle of the deceased, he was guilty of negligence as a matter of law. Without definitely passing upon the correctness of this contention, we are disposed to suggest that such a construction would impose a most extreme requirement upon the driver of an automobile, and in many cases result in absurdity, and make a thoroughly impracticable and unworkable rule. Such a construction would, of course, require the driver of an automobile on a 40-foot concrete roadway to turn to the left of the center. It would require an automobile on a wide and busy city thoroughfare to turn to the left of the center and thereby place himself in the stream of opposite traffic. That there is no practical reason for such an extreme rule seems to us obvious. It is out of harmony with other provisions of the statute, which require the vehicle overtaken upon signal to “turn to the right of the center of the beaten track of such highway,” and the other rule that a vehicle meeting another vehicle shall “turn to the right of the center of the beaten track of such highway,” both of which rules will be found in section 1636--49b. However, it does not seem necessary for us to construe the provision of section 1636--49 requiring one vehicle overtaking another to give the vehicle overtaken one-half of the roadway. The plaintiff, although he requested numerous instructions relating to the statutory duties of the driver...