Weber v. Mayer
| Decision Date | 02 March 1954 |
| Citation | 266 Wis. 241,63 N.W.2d 318 |
| Parties | WEBER, v. MAYER et al. WEBER et al. v. MAYER et al. MAYER, v. WEBER et al. MAYER et al. v. WEBER et al. |
| Court | Wisconsin Supreme Court |
Four separate actions were instituted to recover damages sustained as the result of a collision occurring between two motor vehicles, which actions were consolidated for the purpose of trial.
The accident occurred on September 13, 1951, at the intersection of the Silver Spring Road (county highway VV) and county trunk Y in Waukesha county at about 10:10 a. m. The weather was clear and sunny at the time and the highways were dry. Both highways have an asphalt base surface, 22 feet wide. Silver Spring Road runs east and west, and highway Y runs north and south, and the two intersect at right angles. Silver Spring Road is an arterial highway and an arterial stop sign is located near the southeast corner of the intersection on the east side of highway Y, 30 feet south of the center line of Silver Spring Road. On the day of the accident there was a stand of corn growing in the field at the southeast corner of the intersection, which corn was planted fairly close to the two highways and was of sufficient height and density to obstruct the view of vehicles approaching the intersection from the east or south.
One of the two vehicles participating in the accident was a 1950 Ford trailer truck owned by Richard Weber and driven by his brother, Marvin Weber, in the course of his employment by Richard, which was proceeding empty in a westerly direction on the Silver Spring Road. Even without a load this vehicle weighed 15,000 pounds. The other vehicle was a Pontiac sedan automobile owned and driven by Charles J. Holzhauer in a northerly direction on highway Y. Marvin Weber was alone in the truck, but in addition to Mr. Holzhauer, the Pontiac was also occupied by his wife, Hattie, his daughter, Mardelle, and Robert Daleiden, a friend of Mardelle's. All four occupants of the Pontiac were instantly killed as a result of the collision.
The action was tried to a court and jury and the jury returned a special verdict wherein they found that Marvin Weber was causally negligent as to speed, and management and control, but not as to lookout; and that Holzhauer was causally negligent as to lookout, and management and control, but not as to speed or failure to stop for the arterial. In answer to the comparative negligence question the jury attributed 40 per cent of the negligence to Weber and 60 per cent to Holzhauer. On motions after verdict the trial court held that there was no evidence to support the jury's finding of negligence on the part of Holzhauer, and changed the answers of the verdict from 'yes' to 'no' as to the questions relating to Holzhauer's lookout, and management and control, and changed the percentage of negligence to 0 per cent for Holzhauer, and 100 per cent for Weber.
Judgments were thereupon entered denying all recovery to Marvin Weber and Richard Weber and their insurance carriers (the appellants herein), and granting full recovery to the Holzhauers' heirs and the administratrix of the Charles Holzhauer estate (the respondents herein).
From such judgments appellants have appealed. Further facts will be stated in the opinion.
Bender, Trump, McIntyre, Trimborn & Godfrey, Milwaukee, for appellants Marvin Weber, Richard Weber and Western Casualty & Surety Co.
Wolfe, O'Leary & Kenney, Milwaukee, for appellants Richard Weber and Hartford Fire Ins. Co.
Becker, Kinnel, Doucette & Mattison, Milwaukee, for respondents Audry C. Mayer and Gladys Auer.
Quarles, Spence & Quarles, Milwaukee, for respondents administratrix and Northwestern Nat. Cas. Co.
The appellants on this appeal contend that there was credible evidence to sustain the findings of the jury that Halzhauer was guilty of causal negligence in the operation of the Pontiac automobile both as to lookout, and management and control, and therefore it was error for the trial court to have changed the answers in the special verdict so as to relieve Holzhauer of all causal negligence and place 100 per cent of the negligence upon Marvin Weber.
Respondents, on the other hand, deny that there was any credible evidence upon which the jury could have based their findings of causal negligence as to Holzhauer. Respondents further contend that if this court should determine that it was error for the trial court to have changed any of the jury's answers to the special verdict, the respondents are entitled to a new trial because: (1) Marvin Weber was guilty of negligence as to failure to keep a proper lookout as a matter of law; and (2) there was error in the instructions of the trial court.
As Holzhauer entered the intersection his eastward view was limited to approximately 325 feet because of a hill rising to the east, the crest of which hid traffic approaching to the east of said crest. The collision occurred in the northwest quadrant of the intersection. The photographs of the vehicles taken immediately after the accident would indicate that the point of impact as to the Pontiac was at least partially from the front. The entire right side of the Pontiac was also crushed, indicating that after the initial impact the Pontiac was sideswiped by the truck. The photographs of the truck indicate the point of initial impact to have been the left front fender, apparently more from the side than the front, but the left from headlight was demolished. Although the Pontiac was thrown or traveled a distance of 115 feet after the accident, ending up in the ditch on the north side of the Silver Spring Road to the west of the intersection, there was no evidence that it struck any post or other obstruction after the accident. On the other hand, the truck did shear off a post after the accident, so that it is impossible to determine which damage to the truck was done by the initial impact of the two vehicles and which was due to the shearing off of the post.
Marvin Weber testified that some distance to the east of the crest of the hill he was proceeding at a speed of 40 to 45 miles per hour, but that as he came over the crest of the hill his speed was that of 30 to 35 miles per hour. He further stated that as he was coming down the hill and he was 200 feet from the intersection a dog ran out from the north side of the road and he applied his brakes to avoid hitting him, which had the effect of reducing his speed, but that he did not strike the dog and that his speed was 35 to 40 miles per hour at the time he entered the intersection and at the time of impact. He claims that when he was 150 feet from the corner of the fence around the cornfield he looked for traffic on highway Y but could not see any because his vision was obscured by the cornfield, trees and bushes. He made a second observation when he was 50 feet from the corner of the fence, at which point he testified that he could see about two car lengths on highway Y but saw no vehicle within that distance. Just a second before the impact occurred he saw a 'flash' out of the corner of his eye which was the Holzhauer car. The front of the truck was then a 'couple feet beyond the center of the intersection'. The truck was proceeding on the north or right half of the highway. He does not know how far the Holzhauer car was from his truck when he first saw it, but only a fraction of a second elapsed before the impact occurred. According to his testimony, he first saw the Holzhauer car when it was on his left side and running into his left front fender. However, he does not recall the impact or anything that happened thereafter at the point of collision, as the next thing he remembered was receiving treatment in the hospital.
The only other person who claims to have been an eyewitness to the accident is Lester Borchardt. Borchardt, on the morning of the accident, was driving his own car east on the Silver Spring Road. He claims that he first saw the Weber truck from the top of the hill to the west of the intersection when his own car was three-fourths of a mile from the intersection and the truck was one mile to the east of the intersection, so that the distance of the truck from him was then one and three-fourths miles. Borchardt proceeded down the hill in front of him and thereafter crossed a small bridge and brought his own car to a stop halfway on the shoulder and halfway on the asphalt pavement just beyond the bridge and about 375 feet west of the intersection. At that time he had only seen the Weber truck approaching and had not seen the Pontiac coming from his right on highway Y. His explanation of way he brought his own car to a stop was 'I had it in my heart there was going to be an accident, the truck was ready to come over the crest of the hill any minute', referring to the crest of the hill or knoll 325 feet east of the intersection. After so coming to a stop Borchardt saw the Pontiac approaching from the south on highway Y. He stated that the Pontiac came to a stop 12 feet north of the arterial stop sign and thereafter very slowly entered the intersection and started to make a turn to the left or west and that the front of the Pontiac was already in the northwest quadrant of the intersection when the truck first came over the crest of the hill to the east. Borchardt estimated the speed of the truck to be from 55 to 60 miles per hour and stated that it was traveling on its own or north side of the highway. According to Borchardt, the front of the truck struck the right rear of the Pentiac back of the right rear wheel.
This testimony of Borchardt as to the point of original impact on the Pontiac is in direct conflict with the testimony of Marvin Weber who stated that the Pontiac, when he first saw it, was running into the left side of the truck. The photographs taken of the Pontiac immediately after the accident, while not conclusive, tend to corroborate the testimony of Marvin Weber rather than that...
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