Weber v. Walters

• Decision Date: 07 December 1954
• Parties: Bryant WEBER, a minor, by his guardian ad litem, Arthur L. Weber, Plaintiff and Appellant, v. Margaret WALTERS, Iowa National Insurance Company, a corporation, Chester L. Fletcher, Flanagan Brothers, Inc., a corporation, and Employers Mutual Liability Insurance Co., a corporation, Defendants and Respondents.
• Court: Wisconsin Supreme Court

Page 395

67 N.W.2d 395

268 Wis. 251

Bryant WEBER, a minor, by his guardian ad litem, Arthur L Weber, Plaintiff and Appellant, v. Margaret WALTERS, Iowa National Insurance Company, a corporation, Chester L. Fletcher, Flanagan Brothers, Inc., a corporation, and Employers Mutual Liability Insurance Co., a corporation, Defendants and Respondents.

Supreme Court of Wisconsin.

Dec. 7, 1954.

Rehearing Denied Feb. 8, 1955.

This is an action commenced on March 31, 1951 by Bryant Weber, a minor, by his guardian ad litem, Arthur L. Weber, against Margaret Walters, Iowa National Insurance Company, a corporation, Chester L. Fletcher, Flanagan Brothers, Inc., a corporation, his employer, and Employers Mutual Liability Insurance Co., a corporation, the latter's insurance carrier, for damages on account of an automobile collision which occurred on November 8, 1950 at the intersection of highway 100 and West Good Hope Road in Milwaukee County.

Highway 100, an arterial highway, runs in a general north and south direction and intersects West Good Hope Road which runs in an east and west direction. There were no obstructions to view at the intersection.

Margaret Walters on the day in question at about 3:00 P.M. was driving east on West Good Hope Road. She had with her the plaintiff and three other children. She stopped her car at the intersection to discharge three of the children and waited to observe them cross West Good Hope Road. There is testimony that she stopped her car 5 or 10 feet west of a stop sign which stood at the southwest corner of the intersection and 25 feet west of the west edge of the concrete pavement on highway 100. Before the proceeded into the intersection she looked to the south and saw a truck driven by the defendant Fletcher approaching. When she first saw it, it was at the crest of a hill about a quarter mile from the intersection. Before she proceeded forward she also observed two trucks approaching from the east and turn south on highway 100. After the trucks had completed the turn she entered the intersection. She testified that she looked to the south again, did not see the Fletcher truck and proceeded to cross in her right lane. While in the intersection her automobile was struck by the Fletcher truck. She had traveled easterly about 25 feet from her parked position to the west edge of the concrete on highway 100 and then another 25 feet easterly on the concrete when the collision occurred.

Fletcher testified that when he was 900 to 1000 feet south of the intersection he was travelling at the rate of about 40 to 45 miles per hour and at that time first saw the Walters automobile standing at the stop sign. When he saw the children being discharged from the automobile he was about 500 feet from the intersection and travelling at a speed of from 30 to 35 miles per hour. As he approached the intersection he was travelling upgrade and therefore, after having first decelerated because of the presence of the children, he increased his speed to 40 or 45 miles per hour. His truck struck the automobile on its right side and travelled about 35 to 40 feet from the point of impact.

He testified that he observed the Walters car until the time of the impact; he was about 90 to 100 feet south of the south edge of Good Hope Road when the Walters car started up from its stopped position; he then started to apply his brakes; it appeared to him that the car was to be driven straight ahead and continue easterly on Good Hope Road. After the car was started it was driven quite slowly; as soon as possible he applied his brakes and saw the car start forward; the reason why he applied his brakes was to slow up, 'so in case the car did proceed through the intersection I would have my truck under control'. He was from 45 to 50 feet from the Walters car when he 'got his brakes applied'; he did not swerve his truck prior to the impact but applied his brakes and turned to the right; he did not know how far he was from the Walters car when he turned to the right, it might have been as close as 10 feet.

It appears from the testimony that the average speed of the Walters car as it crossed the intersection was about 7 miles per hour and that that of the Fletcher truck was about 40 to 45 miles per hour.

The issues were submitted to a jury in the form of a special verdict. Defendant Walters was found guilty of causal negligence with respect to lookout and yielding the right of way. No attack is made upon these findings. Fletcher was absolved of negligence as to speed and lookout and found guilty as to management and control. However, the jury found that his failure was not causal. The usual motions after verdict were made. Among other things plaintiff asked that the court change the jury's answer to the question which inquired as to the causal relationship between Fletcher's negligence as to control and the collision. The court refused to disturb the verdict in any respect and on May 29, 1954, entered judgment in favor of plaintiff against defendant Walters and her insurer, and dismissing the complaint against the defendants Fletcher, his employer, and their insurance carrier. Plaintiff appeals.

Samuel Goldenberg, Milwaukee, for appellant.

Moore & Prentice, Milwaukee, for respondents Fletcher, Flanagan Bros. Inc. and Employers Mut. Liability Ins. Co.

GEHL, Justice.

The jury's finding that Fletcher was negligent with respect to the manner in which he controlled his truck is not attacked. Plaintiff contends that the court should have found as a matter of law that such negligence was a proximate cause of the collision. That is the sole question presented upon this appeal.

'The rule of law is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence which under any...