Wappler v. Schenck

• Citation: 178 Wis. 632,190 N.W. 555
• Parties: WAPPLER v. SCHENCK.
• Decision Date: 08 November 1922
• Court: United States State Supreme Court of Wisconsin

178 Wis. 632

190 N.W. 555

WAPPLER

v.SCHENCK.

Supreme Court of Wisconsin.

Nov. 8, 1922.

Appeal from Circuit Court, Milwaukee County; C. A. Fowler, Judge.

Action by Richard Wappler against Otto J. Schenck. Judgment for plaintiff on a directed verdict, and defendant appeals. Reversed and remanded for new trial.

Action to recover for personal injuries. The complaint alleged that Kenwood boulevard and Maryland avenue are intersecting highways in the city of Milwaukee, running in an easterly and westerly and northerly and southerly direction, respectively; that plaintiff, in an an automobile, was proceeding in a westerly direction on the north side of Kenwood boulevard toward the above-mentioned intersection at a rate of speed of from 8 to 10 miles an hour, and in the exercise of due care proceeded across the intersection; and that, while plaintiff was so doing, an automobile owned and operated by defendant, proceeding in a negligent manner at an unlawful rate of speed in a northerly direction on the west side of Maryland avenue, struck the automobile in which plaintiff was riding and caused plaintiff to be thrown to the pavement.

The answer denied the negligence charged. It appears that Kenwood boulevard is 72 feet wide between curbs and has a center park 25 feet wide; each driveway therefore being 23 1/2 feet wide. Where Maryland avenue intersects the boulevard, there is a width of 80 feet between the park spaces. The court directed a verdict for the plaintiff solely on the evidence of defendant, and therefore that is stated at considerable length:

“On that day I did not intend to turn west on Kenwood boulevard. I intended to go straight north on Maryland. I drove a Dodge roadster left-hand drive. I think the brakes were in fair working condition on that day. I came up Maryland avenue that afternoon. It was about 4:30. I was not in a hurry to get to those lots. I had ample time to go to them. As I approached Kenwood boulevard that afternoon, according to my judgment I was going about 12 to 15 miles an hour. When I first saw the Heintz automobile going west on Kenwood, I was about opposite the south curb of the parking in the street in Kenwood--the parking in Kenwood boulevard. When I first saw the Heintz car, I thought I had plenty of time to cross. At that time when I first saw it, in my judgment, the Heintz car was about 50 to 100 feet from the place of the accident, which was a little to the west of the east curb line. I changed my mind a second or two later as to my opportunity to pass. At the time I changed my mind as to whether or not I had ample time to pass in front of Heintz's car, I can't say in miles how fast the car was going, but I realized it was going quite fast. I then tried to stop my car. I put on my foot brake. It took time to apply the foot brake. I had to take my foot off the gas and put it onto the foot brake. I slowed down some, but not sufficient to avoid the collision. I am not able to tell the speed the Heintz car passed in front of me, in the number of miles, but it passed in front of me quite rapidly. I did not notice that the Heintz car diminished its speed as it approached Maryland avenue. It seemed to pass in front of me in a straight line. I do not recollect that I made any effort to avoid coming in contact outside of putting on the brake.

I did not turn my wheel any, because I may have been confused. I thought that I would be able to avoid a collision by putting on the brake. The left front part of my car came in contact with Mr. Heintz's rear left part of his car. Then the Heintz car kept on going, and my front wheel was jammed over on one side. My car started to swerve in a semicircle--slow, not very fast. His car had caught my car as it went past and pulled it over, and the wheel was stuck tight. I tried to straighten out. I tried to go straight and found that I couldn't--tried to straighten it out and was not successful. I was quite shocked and confused, and all my efforts seemed to be directed to straighten out the car, if possible; but it slowly swerved around in a semicircle. I didn't watch the Heintz car after it struck the front end of mine. I know where it was when I got out of my car, and found it there where it overturned. As I traveled north on Maryland avenue, I traveled on the right side of the highway, except where those ditches were about 150 feet south of the south curb of Kenwood boulevard. At that point I was in the center of the road, because those ditches were on each side of the road and left only a space in between. Before I reached that point, I slowed down my car; passed through that point very slowly. It was only 8 or 10 feet wide between the two ditches in the center of the road. I left the space between the two ditches. I proceeded on up to the time I got to the south curb of Kenwood. I was again on the right side of the road. I was not interested in any building in that vicinity. I did not intend to look at it for any purpose at all. At no time from the time I passed over this ditch up to the time of the collision did I turn or look over my left shoulder. I was looking straight ahead.”

On cross-examination defendant testified as follows:

“Plaintiff's automobile was away from me when I first saw it--about 50 to 100 feet away. That was the first time I saw it. When I first saw it, I thought I still had time to cross over; but I saw the machine was coming at quite a rate of speed, and tried everything I could to stop my machine, and failed to avoid a collision. I was not going very fast. I say I did the best I could to stop, and I couldn't stop. I didn't, at the very first moment, try to stop; but the first impression was that I thought I could get across, but he was coming pretty fast, and my next inspiration was that I couldn't get across, and I tried to stop it. I saw him the first time when he was 50 to 100 feet from the place of accident. I think he must have been away at least 50 feet. My recollection is it was about 50 feet. There wouldn't have been a collision, if I would have stopped my car. I tried to stop, but I didn't have time to stop. I have my opinion on my speed from the fact that I never exceed 15 miles an hour.

At the time when the two machines came together I was going 12 to 15 miles an hour. It is my judgment I slacked up after putting on the brakes--slacked up some. I slapped on my brakes. I think I must have been about 20 feet away from the accident at the time I put on the brakes. My recollection is that I had brakes on 20 feet before the time of the contact. When I first saw the automobile of plaintiff, when I was 35 or 40 feet away from the place where the accident happened, I was going about the same speed, 12 to 15 miles an hour. After I had the brakes on for 20 feet, my opinion is that I was going slower. I didn't attempt to turn to the right or the left. Possibly I may have looked at that building when I passed by. I wouldn't say positively, but I will say it is quite likely that I did.”

There was testimony on the part of the defendant that the Heintz car, in which plaintiff was riding, was going between 25 and 30 miles an hour. According to the testimony in behalf of plaintiff, the Heintz car was going from 12 to 15 miles an hour before reaching the crossing, and that at that point the speed was slackened to 8 to 10 miles an hour. When the driver of the Heintz car first saw the defendant's car, it was from 135 to 140 feet, south of the place of collision. The plaintiff testified that he also saw the Schenck car from 135 to 140 feet from the place of collision and that he said nothing to the driver of the car. There was a conflict as to the location of the place of the accident.

Section 1636--49, Stats. 1919, provided in part:

“That in turning corners, in going around curves, * * * at the intersection of any street or crossroad, and where, for any cause, the view in the direction in which the vehicle is proceeding, shall be obstructed, the speed shall be reduced to such a rate as will tend to avoid danger of accident.”

And that:

“At the intersection of any public street or highway with any other public street or highway of this state, the operator or driver of any vehicle shall have the right of way over the operator or driver of any other vehicle approaching him on such cross street or highway from the left, excepting only in cases of cities where a police officer shall be in actual charge of the regulation of traffic at such intersection of streets.”

By direction of the court the jury found for the plaintiff. Damages were assessed in the sum of $5,687, and judgment was...