Wilson v. Koch

• Decision Date: 08 December 1942
• Citation: 241 Wis. 594,6 N.W.2d 659
• Parties: WILSON v. KOCH et al.
• Court: Wisconsin Supreme Court

241 Wis. 594

6 N.W.2d 659

WILSON

v.KOCH et al.

Supreme Court of Wisconsin.

Dec. 8, 1942.

Appeal from a judgment of the Circuit Court for Kenosha County; Alfred L. Drury, Judge.

Reversed.

Action by Mabel Wilson, as administratrix of the estate of Emory A. Wilson, deceased, against Henry C. Koch and others to recover under the death by wrongful act statute, commenced January 8, 1941, for a death sustained in an automobile collision. From a judgment for plaintiff, entered January 21, 1942, the defendants Edward Schmidt, his employer and his insurer appeal.

The plaintiff administratrix sues under the death by wrongful act statute, sec. 331.04(2), to recover for the death of her decedent, who was killed in an automobile collision while riding in an automobile driven by the defendant Koch. The suit is against Koch and his insurer, and Edward Schmidt who was driving a truck as the servant of the City Lumber & Supply Company and the insurer of the Lumber Company. The collision occurred at the intersection of the two main trunk highways 41 and 43 in Kenosha county. Koch was driving south on 41 and Schmidt easterly on 43 which crosses 41 in a southeasterly direction. Both roads are paved with concrete. The pavement on 43 is 48 feet wide. Highway 41 has two lanes, both paved, each 24 feet wide, the east lane for north and the west for south traffic, separated by a grass plot 20 feet wide. There is a traffic light at the intersection. Schmidt stopped for the traffic light which was against him, and on its changing in his favor started up. His truck was fully loaded with gravel. Before starting he looked to his left. A south-bound car on 41 was then stopping in obedience to the traffic light against it. Koch was a block behind this car traveling 55 miles per hour. He passed the stopping car, but did not stop or slacken his speed for the intersection. He neither saw the traffic light nor a warning sign 600 feet north of the intersection, and did not remember passing the stopping car. There were no obstructions to his view to the southwest. He first saw the truck when the front of it was passing over the west lane. He was then almost to the intersection. He then applied his brakes and turned and kept turning left. Schmidt, the truck driver, testified that he saw the stopped car slowing up for the light as he started up and saw Koch's car a block to the north. His truck was in low gear. At his right on 41 three cars were stopped for the traffic light. He had practically crossed the west lane of 41 when the collision occurred, the rear of the truck being about two feet west of the west line of the east lane. After starting he did not again look to his left until he heard the squeak of Koch's brakes. The occupant of the southbound stopped car testified that Koch passed him when he was 100 to 150 feet from the intersection and the traffic light was then red and he was stopping for it. The truck was then in the southbound lane crossing slowly. The facts above stated are not in dispute, although Schmidt's testimony is conflicting as to where his truck was when he first saw Koch's car. The jury found that Schmidt failed to use ordinary care in respect to lookout and that his negligence in this respect was causal, but found that there was no want of ordinary care in respect to management of his truck or obeying the traffic signal. On the verdict so finding, the court entered judgment against him, his employer and the insurer of the truck. These defendants appealed. Koch was found causally negligent and judgment was entered against him, and for contribution against Schmidt, his employer and the employer's insurer. Koch and his insurer do not appeal.

L. E. Vaudreuil, of Kenosha, for appellants.

Nohl, Petrie & Blume, of Milwaukee (Gold & McCann, of Milwaukee, of counsel), for plaintiff and respondent.

Thompson, Myers & Helm and Wilber-shide & Baumblatt, all of Racine, for defendant and respondent.

FOWLER, Justice.

The only question at issue on the appeal is whether the jury's finding that the defendant Schmidt was negligent as to lookout is supported by the evidence. The trial judge was of opinion that the finding was sustained. He based his conclusion on the rule that “the right of a driver to proceed on a green light is not absolute.” The rule is as stated. Two cases of this court are cited by him as making the rule stated applicable to the instant case. These cases are Teas v. Eisenlord, 215 Wis. 455, 253 N. W. 795, and Meyer v. Neidhoefer, 213 Wis. 389, 251 N.W. 237. We consider that the facts involved in these cases clearly distinguish them from the instant case, and that the rule stated does not apply under the undisputed facts here involved. It is true that in the Teas case, which involved a collision at the instant intersection, the lights were in favor of the driver of an automobile when he started into an...