Western Cas. & Sur. Co. v. De Smidt

• Decision Date: 30 March 1971
• Docket Number: No. 249,249
• Citation: Western Cas. & Sur. Co. v. De Smidt, 184 N.W.2d 848, 50 Wis.2d 672 (Wis. 1971)
• Parties: WESTERN CASUALTY & SURETY CO., an insurance corp., Appellant, Phillip Meldahl et al., Plaintiffs, v. Erwin De SMIDT et al., Respondents.
• Court: Wisconsin Supreme Court

Page 848

184 N.W.2d 848

50 Wis.2d 672

WESTERN CASUALTY & SURETY CO., an insurance corp., Appellant Phillip Meldahl et al., Plaintiffs, v. Erwin De SMIDT et al., Respondents.

No. 249.

Supreme Court of Wisconsin.

March 30, 1971.

This appeal arises out of an action for personal injuries that was commenced by the Western Casualty and Serety Company and its insured, Phillip M. Meldahl and Rose Marie Meldahl, against Erwin De Smidt and his insurer, Rural Insurance Companies. The action was tried to a jury, which rendered a special verdict which found that both Phillip Meldahl, hereinafter referred to as the plaintiff, and Erwin De Smidt, hereinafter referred to as the defendant, were causally negligent. The negligence was apportioned 65 percent to the plaintiff [50 Wis.2d 675] and 35 percent to the defendant. Although the jury awarded damages, the jury award in that respect was not attacked in motions after verdict. The plaintiff, however, on motions after verdict, contended that the verdict was contrary to the evidence and that the apportionment of negligence is incorrect. A request was made to strike the finding of negligence on the plaintiff and, in effect, to find the defendant 100 percent negligent and to award a new trial on the issue of damages only. The trial judge denied all these motions and granted the motions of the defendant dismissing the plaintiff's cause of action. The plaintiff, Western Casualty and Surety Company, has appealed from the judgment that followed. The individual plaintiffs have not appealed.

Heide, Sheldon, Hartley, Thom & Wilk, Kenosha, for appellant.

Heft, Coates, Heft, Henzl & Bichler, Racine, for respondents.

HEFFERNAN, Justice.

Inasmuch as the question of damages is not at issue unless the negligence questions are resolved favorably to the plaintiff, plaintiff-appellant has not argued damages before this court. The issues posed, therefore, are whether there was credible evidence to support the jury's verdict finding Phillip Meldahl negligent and to support the jury's apportionment of 65 percent of the negligence to Meldahl and 35 percent to De Smidt.

This accident occurred in Racine county, just north of the intersection of state highway 31 and county trunk RK. County trunk RK is a county line road lying between Racine and Kenosha counties. Highway 31 is a two-lane, two-way, asphalt-surfaced highway for north and south traffic. The paved portion of the highway was 24 feet wide and there was a 12-foot gravel shoulder on each side of the road. Highway 31 is intersected at right angles by county trunk RK, which is an asphalt-surfaced, two-lane road for east and west traffic. The paved portion of the county road was 22 1/2 feet wide. On the southwest corner of the intersection there was a stop sign to control eastbound traffic approaching highway 31 on county trunk RK. The sign is located 55 feet west of the west edge of highway 31. Two-tenths of a mile south of the intersection there is a rise in highway 31 which obstructs the view beyond that point of any person at the intersection attempting to observe traffic to the south. The speed limit on highway 31 was 65 miles per hour.

On December 3, 1967, sometime between 12:30 p.m. and 12:46 p.m., De Smidt approached the intersection, traveling east on county trunk RK. He stated that he stopped at the stop sign west of the intersection. His automobile was closely followed by a vehicle driven by Karen Balke. She testified that De Smidt stopped at the stop sign. De Smidt testified that, while so stopped, he looked to the south and to the north and saw no traffic. He then proceeded, he testified, slowly to the edge of highway 31, looked again, and saw no traffic on highway 31. He made a left turn onto highway 31, proceeding north at a low speed. Karen Balke estimated his speed when he started up from the stop sign to be about 5 or 10 miles an hour. He proceeded north in his proper lane of traffic at a low speed. At or about the same time that De Smidt drove into highway 31, the plaintiff Meldahl was approaching the intersection from the south on highway 31, headed for his home in Racine to watch a Green Bay Packer football game. He was an avid fan, and the Packers were in contention for the league championship and the game was scheduled to begin shortly. He testified that he was traveling at a rate of 50 miles per hour when he came around a curve on highway 31 and over the rise to the south of the intersection. Meldahl stated that as he came over the rise he saw the De Smidt car approaching the stop sign, but, he testified, De Smidt slowed but did not stop at the sign and then proceeded north on highway 31. At this point, apparently the point at which Meldahl realized that De Smidt was in the lane ahead of him, he was allegedly 200 feet from the intersection. He testified he did not reduce his speed because he intended to pass the De Smidt vehicle in the left lane. He then saw that the left lane was blocked by oncoming traffic. He applied his brakes, and he testified that upon so doing his car slid into and through the intersection as a result of loose gravel on the road. He then concluded that he would not be able to stop in time to avoid colliding with the rear of the De Smidt vehicle, so he accelerated, pulled to the east, and passed the De Smidt vehicle on the right shoulder of the highway without slowing down. No contact was made between these vehicles. When Meldahl turned his vehicle back onto the paved portion of the highway, he lost control of the automobile when the car struck the raised asphalt pavement. His car proceeded out of control and unbraked across the highway, and it struck a tree west of the highway and 259 feet north of the north edge of county trunk RK. An eyewitness, Merton J. Fink, a nearby farmer, testified that at the time of the impact with the tree he estimated Meldahl's speed to be 50 miles an hour.

De Smidt testified he did not see the Meldahl vehicle until it passed him on the right at a distance of about 200 feet north of the intersection. Meldahl, on the other hand, testified that he passed De Smidt's vehicle at a point approximately 30 feet north of the intersection.

The Racine county sheriff's deputy who investigated the accident immediately after it occurred testified that he was able to trace tire marks from the Meldahl vehicle from the point where it came to rest against a tree to a point south of the intersection. The deputy was unable to say how far south of the intersection the skid marks first commenced, but Karen Balke testified that the skidding commenced 150 feet south of the intersection. The sheriff's deputy testified that Meldahl's vehicle left skid marks on the highway for 357 feet from the point where they started south of the intersection to the point where they first left the pavement on the east edge of the highway north of the intersection. He testified that the...