Swinkels v. Wis. Mich. Power Co.

• Decision Date: 28 April 1936
• Citation: 267 N.W. 1,221 Wis. 280
• Parties: SWINKELS v. WISCONSIN MICHIGAN POWER CO.
• Court: Wisconsin Supreme Court

221 Wis. 280

267 N.W. 1

SWINKELS

v.WISCONSIN MICHIGAN POWER CO.

Supreme Court of Wisconsin.

April 28, 1936.

Appeal from a judgment of the Municipal Court of Outagamie County; Thomas H. Ryan, Judge.

Reversed, with directions.

In this action, commenced January 30, 1935, the plaintiff, Walter Swinkels, seeks to recover damages from the defendant, Wisconsin Michigan Power Company, for personal injuries sustained in an automobile accident, asserted to have been caused by the negligence of the defendant's servant. The complaint alleged in substance that while the plaintiff was driving his automobile in a safe and lawful manner on a public highway, he overtook a motorbus belonging to the defendant which was proceeding in the same direction; that the plaintiff drew up behind the bus, sounded his horn, and proceeded to pass; that as he drew along side of the bus the driver thereof, without warning and without excuse, turned the bus to the left, across the black line, and forced plaintiff's automobile off the highway and over the embankment. The defendant denied any and all negligence on the part of the driver, and alleged that the plaintiff was negligent in numerous respects which caused the injuries to the plaintiff. Upon closing the testimony, the complaint was amended so as to charge that as the plaintiff drew alongside of the bus the driver thereof, without warning and without excuse, “increased the speed of the bus.” Trial was had to the court and a jury. The jury rendered a special verdict in which it found that the defendant's driver, at or immediately prior to the accident, failed to exercise ordinary care in respect to: (1) Operating the bus to the left of the center of the traveled portion of the highway; (2) not giving way to the plaintiff's vehicle after receiving an audible signal of the plaintiff's desire to pass; (3) increasing the speed of the bus after receiving an audible signal of the plaintiff's desire to pass. The jury found that the driver of the bus did not fail to exercise ordinary care in respect to suddenly and without warning turning the bus abruptly to the left of the center of the highway knowing that the plaintiff was seeking to pass. The jury further found that the defendant's want of ordinary care, in the respects found, proximately caused the plaintiff's injuries. The jury found that the plaintiff did not fail to exercise ordinary care in any of the following respects: (a) Attempting to pass the bus without having sufficient reason to believe that the plaintiff's signal was audible to the driver of the bus and that the driver of the bus knew of the plaintiff's desire to pass; (b) propelling his automobile past the bus on the left side of the highway, upon an upgrade where the plaintiff's view along the highway was obstructed within a distance of one thousand feet; (c) propelling his automobile on the left side of the highway past the bus upon a curve where the plaintiff's view along the highway was obstructed within a distance of 1,000 feet; (d) failing to apply the brakes of his automobile so as to check the speed thereof before reaching the point where the guard posts were placed on the left side of the highway; (e) persisting in an attempt to pass the bus after the plaintiff learned that the driver, through ignorance of the plaintiff's approach or through willfulness, probably would not yield to the plaintiff the right to pass; (f) operating his automobile on the left side of the traveled portion of the highway when such portion of the highway was not free from oncoming traffic a sufficient distance to permit him to overtake and pass the bus in safety; (g) failing to observe the lessened width of the highway in that portion thereof bordered on the south side of the guard posts in time to check the speed of his automobile before a collision with the easterly guard post; (h) operating his automobile upon the public highway after subjecting himself to the influence of intoxicating beverages to such an extent as to substantially impair his ability to control and operate his automobile; (i) driving at such a rate of speed in approaching that portion of the highway bordered on the south by guard posts as to be unable to stop in the distance in which the most easterly guard post would be plainly visible if the concrete portion of the highway was obstructed so as to prevent passage of plaintiff's automobile without striking the guard post. The jury assessed the damages sustained by the plaintiff. Upon the coming in of the verdict, the plaintiff moved for judgment on the verdict, and the defendant moved to change the answers of the jury and for judgment upon the verdict as so changed and for judgment notwithstanding the verdict. The plaintiff's motion was granted and the defendant's motions denied. From a judgment entered on August 22, 1935, the defendant appealed.Shaw, Muskat & Paulsen, of Milwaukee, and Homer H. Benton, of Appleton, for appellant.

Bradford, Bradford & Derber, of Appleton, for respondent.

NELSON, Justice.

In our view, the only question that need be determined upon this appeal is: Does the evidence support the finding that the defendant's driver failed to exercise ordinary care and that such failure caused the plaintiff's injuries?

At the outset we should state the material facts. At about midnight on the evening of June 16, 1934, the plaintiff, a single man, twenty-three years of age, left McCabe's Tavern in the village of Little Chute intending to drive his automobile to Appleton. Accompanying him were two young ladies, Catharine Lemmens and Frances Blohm, and a young man, John Lemmens. Catharine occupied the front seat with the plaintiff, and Frances and John occupied the back seat. The automobile, just prior to the accident, was being driven in a westerly direction along U. S. Highway No. 41. That highway was paved with concrete, was eighteen feet wide with the usual shoulders, and had a black line in its center. Upon going over the crest of a hill shortly before the accident, the plaintiff observed the defendant's bus several hundred feet ahead of him, proceeding in the same direction. The plaintiff overtook the bus which, at the time of overtaking, was traveling about a foot and a half over the black line. As the plaintiff came up to the bus, he did not decrease his speed or trail the bus at all but, after giving two short blasts of his horn, proceeded to pass it. The plaintiff estimates that his speed at that time was forty miles per hour. The bus did not give way to the right in response to his signal, but according to the plaintiff's testimony, further invaded the left side of the road so that it was about three feet over the black line when the front of the plaintiff's automobile was about opposite the middle of the bus. Just at that time he sounded his horn twice and almost immediately, without applying his brakes or decreasing his speed, turned his automobile into the ditch. At no time was there any contact between the plaintiff's automobile and the bus. The shoulder at that point had narrowed down from about eight feet to two and a half feet. The narrowing of the shoulder was caused by a long row of guard posts which existed on the south side of the road to protect traffic from the hazards of a deep ditch on the south side of the road. A short distance to the west beyond the first guard post the highway curved to the left. The road at the place of the accident was substantially straight. There was some dispute as to just where the curve began and the upgrade beyond started, but there is no dispute that a curve and an upgrade existed a short distance beyond the first guard post. When the plaintiff turned his automobile toward the ditch, it almost immediately hit the first or most easterly guard post, and as a consequence the plaintiff was seriously injured. The plaintiff himself described the accident as follows: “As I was going down the hill I noticed a bus ahead of me. The bus was way over the black line. I pulled up behind the bus and sounded my horn but he didn't get over and I got up alongside of him and I sounded the horn again. The bus kept coming over toward me and I sounded my horn and the bus came over and I had to take the ditch. The front wheels of my car reached a point about the middle of the bus. As I was attempting to pass the bus I sounded my horn but the bus kept coming towards me and shoved me off the road. I had to hit the bus or take the ditch. I would say it is about one hundred feet from the time I pulled...