Wobosel v. Lee

• Decision Date: 20 June 1932
• Citation: 243 N.W. 425,209 Wis. 51
• Parties: WOBOSEL v. LEE ET AL.
• Court: Wisconsin Supreme Court

209 Wis. 51

243 N.W. 425

WOBOSEL

v.LEE ET AL.^a1

Supreme Court of Wisconsin.

June 20, 1932.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge. Reversed.

Action to recover damages for personal injuries sustained by plaintiff in an automobile collision was commenced May 23, 1930, against the defendant Leo McLaughlin, in whose automobile plaintiff was a passenger, and also against M. E. Lee, administrator of the estate of Edward Lee, deceased, who was the driver of the other automobile in the collision. From a judgment entered July 8, 1931, for the recovery by plaintiff from the defendant Lee, and dismissing the latter's cross-complaint against McLaughlin, Lee appealed, but subsequently dismissed his appeal from that part of the judgment which related to his cross-complaint.Richmond, Jackman, Wilkie & Toebaas, of Madison, and Kittell, Jaseph, Young & Everson, of Green Bay, for appellant.

Edward M. Goemans, of De Pere, for respondent.

FRITZ, J.

[1] The collision on a curve in a concrete highway occurred at the bottom of a hill 900 feet long, which had a grade that averaged 2.41 per cent., and was 5.12 per cent. at its steepest point, and all of which was coated with ice that had formed on the night of the collision. Plaintiff was a guest in defendant McLaughlin's automobile, which was proceeding southward around a curve, and was about to climb the hill, when it was struck by Lee's automobile which, proceeding northward, had slid down the entire hill beyond Lee's control. As Lee's automobile started downward at the top of the hill, it began sliding and swaying from his right side of the concrete roadway to the left side, and, during the course of its 900-foot descent, its rear end swung completely around so that it faced in the opposite direction by the time the collision occurred. As it is established that skidding may occur, and when it does occur may likewise continue for a considerable space and time, without fault or negligence on the part of the driver (Linden v. Miller, 172 Wis. 20, 177 N. W. 909, 12 A. L. R. 665), it was rightly considered necessary on the trial, by the court and counsel, for plaintiff to establish negligence in some respect on the part of Lee, in operating his automobile, in order to hold him liable for the consequences of the collision. In a special verdict the jury found that at or immediately prior to its skidding Lee negligently drove his car at an unreasonable speed, and that as a result thereof the collision occurred.

On the trial, on motions after verdict, and on this appeal, it is the contention of Lee's counsel that there was no competent evidence to sustain that finding of unreasonable speed. There was no evidence regarding Lee's actual rate of speed as he reached the place where he began to skid, excepting mere conclusions testified to by Francis Goemans, whose observations had been of but the most casual character. Although objections to his testimony and motions to strike it out on the ground of incompetency had been duly made by Lee's counsel, they were all overruled. He testified that he had had considerable experience in riding in an automobile as a driver as well as merely a passenger, including Lee's automobile, and also in making observations as to the speed at which he was traveling. His observations had included the vibrations and sensations experienced in automobiles when propelled at different rates of speed. He testified, “The faster your motor goes, the more you can hear your motor--you go past an object faster,” and that he could tell when a car was being speeded up. He testified further: “I should be able to tell pretty close when I get into a car and shut my eyes how fast a car was going on a concrete payement. I think I could tell the speed when sitting in the back seat of a car * *...