Whyte v. Lindblom
| Decision Date | 05 June 1934 |
| Citation | 216 Wis. 21,255 N.W. 265 |
| Parties | WHYTE v. LINDBLOM ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Kenosha County; S. E. Smalley, Circuit Judge. Reversed.
Jessel S. Whyte seeks to recover damages from William Lindblom and his insurer, the American Employers' Insurance Company, alleged to have been caused by the negligence of Lindblom. The action was begun December 10, 1932. Judgment for plaintiff was entered December 9, 1933. Defendants appeal.
The controversy arises out of an automobile collision occurring at the intersection of Seventy-Third street and Third avenue in the city of Kenosha on May 5, 1932. Seventy-Third street, running east and west, intersects Third avenue, a north and south street. The plaintiff was driving east on Seventy-Third, and the defendant south on Third. At a point on Seventy-Third street 81 feet from the west curb line of Third avenue, one can see to the north 188 feet. At 60 feet from the Third avenue west curb one can see the same distance, at 40 feet, 312 feet, and the opportunity for seeing anything coming from the north on Third avenue increases as the driver on Seventy-Third street approaches the intersection. The plaintiff entered the intersection before the defendant. The south-bound car struck the east-bound car near its middle on the left side when that car was about in the center of the intersection.
The jury in a special verdict found the defendant guilty of negligence as to speed, in failing to keep his car under control, and in failing to yield the right of way, but not guilty as to keeping a proper lookout; found the plaintiff not guilty in respect to lookout and warning his daughter Harriet, who was driving the car, of the danger; assessed damages in favor of the plaintiff in the sum of $500 for personal injuries and $1,000 for dental expenses for his daughter Helen, who was also a passenger in the car and was seriously injured. By stipulation this case was tried with three other cases considered herewith. 213 Wis. ___, ___, ___, 255 N. W. 267, 268.
The defendants moved for judgment notwithstanding the verdict upon the ground that the plaintiff was guilty of contributory negligence as a matter of law and that such negligence was equal to or greater than any negligence on the part of defendant Lindblom, and in the alternative to change certain answers in the verdict and for a new trial because of errors in the reception of evidence and in the instructions to the jury. Defendant's motions were denied and judgment entered in favor of the plaintiff, and, from the judgment accordingly entered, defendants appeal.Hammond & Jones, of Kenosha, for appellants.
Randall, Cavanagh, Stephenson & Mittelstaed, of Kenosha, for respondent.
The accident happened at the crossing of two roads. The respondent undertook to maintain the lookout for his daughter who was driving the car, thus leaving her free to devote her undivided attention to the operation of the car. The daughter had had some recent experience as a driver and was anxious to demonstrate to her father the success she had attained. It is conceded that the daughter Harriet did not attempt to inform herself as to the presence of any approaching automobiles at the intersection. Respondent was riding in the front seat beside the driver. He testified that his daughter slowed down because of the intersection; that he looked to the north but did not see the Lindblom car; that he was unable to make any observation to the north until he was about 30 or 35 feet west of Third avenue; that at that point he could see possibly 125 to 130 feet north, and that at that time there was no car in sight....
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