Vogel v. Vetting

• Decision Date: 06 October 1953
• Parties: VOGEL et al. v. VETTING et al.
• Court: Wisconsin Supreme Court

Page 399

60 N.W.2d 399

265 Wis. 19

VOGEL et al. v. VETTING et al.

Supreme Court of Wisconsin.

Oct. 6, 1953.

Rehearing Denied Dec. 1, 1953.

On September 11, 1951, the plaintiff Mary F. Vogel was driving an automobile owned by her husband in an easterly direction upon a town road. The defendant Louis H. Vetting was driving his automobile north upon a town road and the cars collided within the intersection of the two roads. Suit was brought by Mrs. Vogel and her husband against Vetting and his insurance carrier to recover damages resulting from the accident. The defendant Vetting counterclaimed against the plaintiffs. The case was tried to the court and a jury. The pertinent parts of the special verdict submitted to the jury and the jury's answers follow:

'Question 1. Did the two cars in question approach or enter the intersection at approximately the same time? Answer: Yes.

'Question 2. At and immediately prior to the collision was Louis H. Vetting negligent in operating his car in respect to

'(a) Lookout? Answer: Yes.

'(b) Control and management? Answer: Yes.

'(c) Speed? Answer: No.

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'Question 4. At and immediately prior to the collision was Mary F. Vogel negligent in operating the car she was driving in respect to

'(a) Lookout? Answer: Yes.

'(b) Control and management? Answer: Yes.

'(c) Failure to yield the right of way? Answer: No.

'Note: Do not answer subdivision (c) of this question if you answer subdivision (c) of Question 3 Yes, or if you answer Question 1 No.'

The negligence of each driver as to lookout and management and control was found to be causal. Sixty percent of the negligence was attributed to Vetting and forty percent to Mrs. Vogel. Upon motions after verdict the court changed the answer to sub. (c) of Question 4 from 'No' to 'Yes' and made a corresponding change in Question 5, which was the causation question with respect to the negligence of Mrs. Vogel. With those changes in the verdict the trial court found as a matter of law that the negligence of the plaintiff Mary Vogel was greater than, or at least as great as, the negligence of the defendant Vetting. Upon a waiver of the damages found on Vetting's counterclaim, the court apportioned the percentage of negligence to a fifty-fifty basis. Judgment was entered October 1, 1952, dismissing the complaint of the plaintiffs. The plaintiffs appeal.

Dudley O. Emmert, Manitowoc, for appellant.

Hougen, Brady & Murphy, Manitowoc, for respondents.

BROADFOOT, Justice.

Each driver was injured in the collision. They were taken to the same hospital in the same ambulance and treated by the same doctor, who testified that each, because of injuries, suffered a retrograde amnesia. Each driver was alone. The plaintiff Mary Vogel could remember nothing that happened after passing a farm some distance west of the intersection and Vetting could remember nothing after he passed a certain driveway, known as the Lensmeyer driveway, which was some 550 feet south of the intersection. Mrs. Vogel could testify to nothing that would aid in explaining the cause of the collision. Vetting testified that when he was opposite the Lensmeyer driveway he was traveling at about 35 miles per hour.

There was one witness, George Schuh, who testified that he saw both cars before the accident and that he saw the accident. He was about to enter a barn on his father's farm which was about 650 feet southwest of the scene of the accident. He testified that he first saw the Vetting car when it was 10 or 15 feet north of the Lensmeyer driveway. He watched the Vetting car for a sufficient length of time to make an estimate as to its speed. In his judgment the Vetting car was going from 45 to 50 miles per hour. He then looked north and saw the Vogel car, which was traveling on the north side of the highway going east at a speed estimated by the witness at 15 to 20 miles per hour. At the time he saw the Vetting car he was approximately 300 feet southwesterly from it, and the Vogel car, when he saw it, was about 600 feet north from where he was standing. His testimony as to the cars immediately before the collision was as follows:

'Q. Now, from the time that you first saw the Vogel car, George, did it keep up the same speed from the time you saw it until the time of the crash? A. Well, that might have slacked up a little.

'Q. And the Vetting car, did that continue at the same speed? A. No, that slacked up too right on the--too late though.

'Q. You saw it slack up; whereabouts was it when you saw it slack? A. Just before it hit it.

'Q. Just before it hit it; a matter of about how far would you say? A. About five, ten feet.'

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'Q. Did you notice Mr. Vetting slow down at all as he passed the Lensmeyer drive? A. No, he didn't, I didn't notice nothing.

'Q. He might have slowed down some and you wouldn't have noticed it, is that it? A. I wouldn't think he slowed down until he got to the intersection.

'Q. You didn't keep your eye on his car all the time, did you? A. No, not all the time.'

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'Q. And the Vogel car kept right on traveling along about at the same speed, is that right, is that correct? A. Yes.

'Q. --up until the time the collision occurred, is that right? A. Right.

'Q. And did you see the cars some together? A. I seen them come together.

'Q. You did, is that right, George? A. That is right.

'Q. Now, did you observe whether the Vogel car turned to the left or the right before it was struck? A. No, it kept about on the north side of the east and west road.

'Q. And it kept right on going, is that it; is that right? A. That is right.

'Q. On the north side of the road. A. North side.

'Q. And did you observe whether the Vetting car turned to the left or the right before the collision occurred? A. Well, it might have turned to the left a little.

'Q. It might have; you mean you don't know whether it did or not? A. No.'

The plaintiffs contend that the findings of negligent lookout and control and management by Mary Vogel have no support in the evidence. It is clear from the record that each driver had an unobstructed view of the intersecting highway for several hundred feet prior to reaching the intersection. On the question of lookout, the trial court instructed the jury that where a motorist receives injuries in an accident which result in amnesia as to the events leading up to the accident, the motorist is entitled to the benefit of the presumption that he exercised due care for his own safety until there is competent evidence to overcome that presumption. The drivers each suffered amnesia as a result of injuries sustained in the accident. This presumption of due care applied not only to Mrs. Vogel but to Vetting. Therefore, we must presume that each driver looked and saw the other car which was in clear view. There is nothing in the record upon which there could be a finding that either driver was negligent as to lookout.

In passing upon the question of negligence of the respective drivers in the management and control of their automobiles, the jury was entitled to draw legitimate inferences from the physical facts. In that connection it must be remembered that although the driver entitled to the right of way may rely on the assumption that the other driver will yield him the right of way, that assumption disappears when it appears or should appear to him, as a person of ordinary and reasonable prudence, that the other driver will not or cannot yield. It then becomes the duty of the favored driver to exercise ordinary care in the management and control of his automobile. Lozon v. Leamon Bakery Co., 186 Wis. 84, 202 N.W. 296; Hamm v. Miller, 256 Wis. 192, 40 N.W.2d 387. In Reynolds v. Madison Bus Co., 250 Wis. 294, 26 N.W.2d 653, 658, this court said:

'In connection with the general subject of right of way we deem it advisable to make one further observation. When two cars approach or enter the intersection at approximately the same time the driver to the left has a statutory duty to yield the right of way. The driver to the right is negligent if he insists upon claiming his right of way where it is evident that his competitor for the intersection is not going to respond to this duty. These are separate items of negligence which exist concurrently and are to be measured and compared by the jury.'

Under the circumstances in this case we cannot say that the jury was not justified in drawing an inference that each driver was negligent with respect to management and control.

Plaintiffs urge strongly that the trial court was in error in submitting two right of way questions to the jury: one, whether two cars approached or entered the intersection at approximately the same time, and the other, whether plaintiff was negligent with respect to failure to yield the right of way. It is their contention that Question 1 directed a cross-examination of the jury for the determination of a mere evidentiary fact, and that Question 4(c) was the proper question for submission of the issue of right of way. This, the plaintiffs contend, called for a determination by the jury of the ultimate fact.

We agree that...