Thorp v. Landsaw

• Decision Date: 15 February 1949
• Citation: 254 Wis. 1,35 N.W.2d 307
• Parties: THORP v. LANDSAW et al.
• Court: Wisconsin Supreme Court

254 Wis. 1

35 N.W.2d 307

THORP

v.LANDSAW et al.

Supreme Court of Wisconsin.

Dec. 15, 1948.

Rehearing Denied Feb. 15, 1949.

Appeal from that part of the order and judgment of the Circuit Court for Washburn County which dismissed the complaint of the plaintiff against Edwin Thorp and the Metropolitan Casualty Insurance Company; Carl H. Daly, Judge.

Action by Walter Thorp against Emma Mae Landsaw, Edwin Thorp, their insurance carriers, and others for personal injuries sustained in an automobile accident. From so much of the judgment rendered as dismissed the complaint against defendants Thorp and his insurance carrier, defendant Landsaw and her insurance carrier appeal.-[By Editorial Staff.]

Reversed and remanded with directions.

The plaintiff Walter Thorp commenced this action on the 23rd day of September, 1947, against the defendants Emma Mae Landsaw, The Aetna Casualty and Surety Company, Edwin Thorp, Metropolitan Casualty Insurance Company, Rockwell Peterson, doing business as Peterson Motor Sales, and Employers Mutual Indemnity Company, to recover damages for personal injuries sustained by him in an automobile accident which the plaintiff alleged was due to the negligent conduct of the defendants Edwin Thorp and Emma Mae Landsaw. The case was tried to a jury and the jury found that the defendant Landsaw was guilty of negligence in respect to management and control and in respect to the position of her car on the highway, and that such negligence was a cause of the plaintiff's injuries. The jury also found, in answer to question 3, that the defendant Edwin Thorp was negligent in respect to speed, management and control and in respect to the position of his car on the highway, and in turning his car to the left just before the cars collided, and that such negligence was the cause of the damages sustained by the plaintiff. The jury also found that the negligence of the defendant Landsaw was due to her lack of skill and experience in operating her automobile. The jury apportioned the negligence 50% to Emma Mae Landsaw and 50% to Edwin Thorp, and assessed the plaintiff's damages at the sum of $7,000. On motions after verdict the court ordered a new trial between the plaintiff and the defendant Landsaw unless the plaintiff should elect to accept the sum of $3,000 within twenty days after the date of the filing of the order. The plaintiff accepted the reduction. As to the defendant Edwin Thorp the court ordered that the findings of the jury as to the negligence of the defendant Edwin Thorp be stricken, and that the motion for judgment against Edwin Thorp be denied. Accordingly the complaint as to Edwin Thorp was dismissed and judgment entered against Landsaw and her insurance carrier for the sum of $3,000 and costs.

As already stated, on the 20th day of February, 1948, the defendant Landsaw and her insurance carrier appealed from so much of the judgment as dismissed the complaint of the plaintiff Walter Thorp against the defendant Edwin Thorp and his insurance carrier. The facts will be stated in the opinion. Doar & Knowles, of New Richmond, for appellants.

Coe & Cameron, of Rice Lake, for respondents.

ROSENBERRY, Chief Justice.

On this appeal it is the contention of the appealing defendants that there was credible evidence to support the finding of the jury as to the causal negligence of the defendant Edwin Thorp and for that reason the court erred in entering judgment dismissing the plaintiff's complaint as to him.

We shall state and consider only such testimony as is relevant to this issue.

On the 3rd day of October, 1946, at about 3:30 o'clock in the afternoon, Edwin Thorp was driving his automobile in a westerly direction on highway 70 at a point about four miles west of Spooner in Washburn county. At about the same time the defendant Landsaw was driving easterly on said highway going toward Spooner. The accident happened on a straight blacktopped road 28 feet wide. As one approaches the place of the accident from the east, traveling west, the highway curves, and then proceeds straight away for a distance of a mile to a mile and a half. The collision happened between 1000 and 1500 feet west of the curve. As one approaches the place of collision from the west the highway is slightly down-grade for a short distance and then levels off for some distance west of the place of collision. At the place of collision there was a grassy shoulder three or four feet wide on each side of the highway. On the north side there was a gradual ditch 14 to 16 inches deep and approximately six to eight feet wide. There was a yellow line marking the center of the highway. The pavement was dry, the road in excellent condition and practically level for more than a mile.

In its memorandum opinion the trial court made a summary of the evidence and reasons for its construction, of which the following is the substantial part:

‘Edwin Thorp was proceeding west and Miss Landsaw was proceeding east. According to Edwin Thorp the road was 28 feet wide, and when he first saw Miss Landsaw she was some distance to the west of him. That when he first saw her, which was at least 1000 or 1500 feet away, she was in the middle of the road, straddling the yellow line. That her car then returned to the south side of the yellow line and stayed there until just before the accident. That when she was 50 or 60 feet away from him, or west of him, she turned into his path or his line of travel. That at the time he was traveling 35 to 45 miles an hour, and that Miss Landsaw was traveling about 35 miles per hour. That from the time she turned across his path of travel until the accident was about one-eighth of a second. That when Miss Landsaw's car was 1000 or 1500 feet west of him, his father, who was riding with him and saw the Landsaw car shimmying, cautioned him and said ‘Look out, there is a drunken driver, or there might be.’ That at that time he was going 45 to 50 miles an hour, and he lifted his foot off the gas and reduced his speed, but did not apply his brakes. * * *

‘Emma Mae Landsaw testified that when she saw the Thorp car about a quarter or half a mile away, it was in the center of the road, but then it got over on the north side and stayed there until the time of the accident. That her car was on the south side of the highway until just shortly before the accident, when it swerved or turned to the north side; that she could not control it, and that she thought the tie-rod broke, which prevented her from steering. She testified her speed was 35 miles per hour, and that Edwin Thorp was traveling 50 to 60 miles per hour.

‘There was testimony that Edwin Thorp could have driven his car into the north ditch, or north shoulder, and would have had room to pass on the north side; that he did not apply his brakes, and there was testimony if he had stayed on his own side or the north side of the road, he could have got by.

‘It seems to us that in this situation the emergency doctrine applies, and that the following cases are in point, bearing on the question of liability: Watkins v. Watkins, 210 Wis. 606, 245 N.W. 695;Clark v. McCarthy, 210 Wis. 631, 246 N.W. 326,Schwab v. Martin, 228 Wis. 45;Frankland v. DeBroux, 251 Wis. 210, 28 N.W.2d 256;Oelke v. Schneider, 250 Wis. 87, 26 N.W.2d 170.

‘It seems to us that the accident was caused by Emma Mae Landsaw's car suddenly swerving in front of the car of Thorp. From the time she made this sudden swerve to the north side of the road, which was made according to the testimony, when she was either 15 or 20, or 50 to 60 feet from the Thorp car, nothing that Thorp could have done would probably have avoided the accident. He was confronted with an emergency, and he took the course which he thought would avoid an accident, although later it might not prove to be the most prudent thing to do. If it was an emergency, he is not liable.

‘It seems to us the only way in which any liability could attach to Thorp would be that if he neglected to do something he should have done prior to the time that the Landsaw car...