Strnad v. Co-operative Ins. Mutual

• Decision Date: 30 December 1949
• Docket Number: CO-OPERATIVE
• Citation: 40 N.W.2d 552,256 Wis. 261
• Parties: STRNAD, v.INS. MUTUAL. MELESKI, v. STRNAD et al.
• Court: Wisconsin Supreme Court

Page 552

40 N.W.2d 552

256 Wis. 261

STRNAD, v. CO-OPERATIVE INS. MUTUAL.

MELESKI, v. STRNAD et al.

Supreme Court of Wisconsin.

Dec. 30, 1949.

Krueger & Plier, Oconto, Emmet McCarthy, Marinette, for appellant.

Lehner & Lehner, Oconto Falls, Adolph P. Lehner, Oconto Falls, Howard N. Lehner, Oconto Falls, for respondents Strnad.

Byrne, Bubolz & Spanagel, Appleton, for defendants and respondent Strnad and Home Mut. Cas. Co.

ROSENBERRY, Chief Justice.

About 12:15 a. m. on April 26, 1948, Strnad drove his Ford car east on highway 22 to its intersection with highway 141 at Stiles Junction. He then turned south or to his right on to highway 141, a concrete surfaced highway 20 feet wide, except for a stretch of blacktop a short distance south of where the collision in question took place. He was driving, according to his testimony, at a speed of about 40 to 45 miles an hour.

The deceased, Donald Meleski, was driving his 1948 Chrysler car north from Stiles village along highway 141 at a speed at some points estimated to be 80 to 95 miles an hour.

The collision occurred approximately 64 feet north of the edge of the blacktop near a sign 'Tractors with lugs prohibited.' As a result of the collision Meleski was killed and Strnad was seriously injured. No questions were submitted to the jury except those involving a determination whether either or both of the parties invaded the lane of the other party. The cars came to rest, the Meleski car on the east shoulder facing southwest, Strnad's car came to rest on the west shoulder of the highway facing northeasterly. Exhibit 'D' reproduced herewith, shows the location of the Strnad car and the sign. Exhibit D was taken between two and half past two o'clock on the morning of the accident, the camera facing south. The Strnad car was in the position it was in when the photographer arrived at the scene shortly after the collision. There is no contention that the Strnad car had been moved between the time of the collision and the taking of the photograph. The letter (T) near the bottom of Exhibit D indicates the end of a tire mark which began about 4 feet east of the center line (See Ex. G), and extended southwesterly to a point near the Strnad car.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Referring to Exhibit D the letter 'S' to the north indicates the point where there was scraped concrete. It proceeded across the highway and there was chipped areas around on the east end of the large gouge. The large gouge began about three or four feet east of the center line. The photographer testified that he saw oil marks on the highway. The letter 'O' indicates the location of the oil on the surface of the concrete.

Exhibit G reproduced herewith is another photograph of the highway at the scene of the accident taken the morning of the 26th, about nine o'clock, facing north. The letter 'T' to the north indicates the beginning of the tire mark, the south end of which is indicated on Exhibit D. The letter 'S' indicates the beginning of the scrape on the concrete. The letter 'O' on Exhibit G indicates the presence of oil.

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Referring now to Exhibit A, a map reproduced herewith on a reduced scale for illustration, it appears from the testimony and the map that the scrape or gouge referred to began three or four feet east of the center line of the highway and about 20 feet north of a point opposite the lug sign and extended southwesterly to a point near the Strnad car, the exact distance not appearing. From the evidence it appears that the cars were 65 feet apart after they came to rest.

The entire front end and particularly the left front corner of Strnad's Ford was badly damaged. The valley plate on Strnad's motor which keeps the oil from splashing over the motor was broken. The frame was broken back of the motor.

The entire left side of Meleski's Chrysler was badly damaged but most of the impact was at the cowl ahead of the door. The motor and transmission of the Meleski Chrysler were not damaged and did not leak oil or water. The left front tire of the Strnad car was flat. There was no flat tire on the Chrysler.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

From the testimony of other witnesses it appears that the scratch mark or gouge in the concrete was 42 inches east of the center line. There were splashes of oil on the concrete almost on the east edge of the concrete. The oil splashes were three feet east of the gouge in the concrete. There were oil marks from the center of the road that ran southwest and ended close to the west edge of the concrete. The oil mark followed the scratch southwest and ran across the west lane. The glass, mud and debris was on the east side of the road. In the vicinity of the Chrysler there wasn't any glass or debris on the west half of the road.

On the trial Strnad testified as follows:

'There is a slight angle on the road all the way up (This refers to a time when he was traveling south toward the scene of the collision). I had my headlights on bright when I first saw the car coming from the south toward me. I did not leave them on bright until after the collision. I switched them right on dim as soon as I saw his lights. I do not know how far I was from that other car at the time I switched on my dimmers. I did that in the fraction of a second. That is all I did was to put on my dimmers. I did not turn my wheel one way or the other. I did not change my position on the road at all. I went in the same direction. * * * I knew there was a slight grade in the highway there.'

He also testified substantially as follows:

'The accident happened just north of the blacktop, about two or three car lengths I would say. My car was on the concrete. I don't know how near the north edge of the blacktop was when I first saw an approaching car from the south. * * * I could see this car (Meleski's) before the crash occurred for a second or a fraction of a second before it hit me. I was driving about 40 to 45 miles per hour and the first time that I saw the headlights of the car approaching me was a second or less than a second before the crash occurred. * * * 'Q. He was coming down on you? A. Well, coming up at me; it is upgrade there. He was right in the center of the road. I have no idea how far away it was when I first saw it but I am positive that it was in the center of the road. I was not in the center of the road. When I say it was in the center of the road I mean the center of that automobile was over the black line, was already coming along the black line--half of his car was over the center of the road on my said. * * * I mean to tell you that there was a second or less than a second from the time I first saw these headlights coming toward me and the time of the crash. I am sure about that and I am also sure that this other car was half way over the center line on my side of the road.'

At another point he testified: 'As I proceeded after seeing those lights I could see the concrete very good. I could see the center line.'

The case was submitted to the jury on a special verdict. By the first and second questions the jury found Donald Meleski causally negligent in respect to the position of his car on the highway. By the third and fourth questions the jury found that Elmer Strnad was causally negligent in respect to the position of his car on the highway. By the fifth question the jury assessed Strnad's damages at $6,241.60. By the sixth question the jury assessed the damages of the special administrator at the sum of $4,664. By the seventh question the jury apportioned the negligence, to Elmer Strnad 60%, to Donald Meleski, 40%.

After verdict, in the case of Meleski, special administrator, v. Strnad, the plaintiff and the Co-operative Insurance Mutual moved, (1) for judgment on the special verdict as rendered by the jury.

(2) Alternative motions, (a) for an order changing the answers of the first and second questions of the special verdict from yes to no. (b) Changing the answer of subdivision (a) of the seventh question of the special verdict from 60% to 100%, and changing the answer to sub-division (b) of the seventh question from 40% to zero, and for judgment on the amended verdict.

The attorneys for Strnad and Home Mutual Casualty Company moved in the alternative as follows:

(a) For an order striking the answer of the jury to questions 3 and 4, and to subdivisions (a) and (b) of question 7, and for judgment on the verdict as so amended.

(b) For an order correcting the answers to subdivisions (a) and (b) of question 7 to read (a) 50%; (b) 50%; (c) For judgment dismissing plaintiff's complaint notwithstanding the verdict; (d) For a new trial of this action because the verdict is contrary to the undisputed facts and is contrary to law.

In its memorandum decision from the bench on motions after verdict the trial court said, among other things: 'There is some evidence in the case, namely, the oral testimony of the plaintiff Strnad, that Donald Meleski, the driver of the other car that met in collision with the Strnad car, invaded the west half of the highway and failed to yield half of the traveled portion of the highway and there is an abundance of evidence, consisting of physical facts, to sustain the finding of the jury that Strnad invaded the east half of the highway, or his wrong side. However, there is no evidence to sustain the findings of the jury that both drivers at the time of the collision had invaded the wrong side of the highway. The verdict is a definite compromise and is...