Wojan v. Igl

• Decision Date: 09 October 1951
• Citation: 49 N.W.2d 420,259 Wis. 511
• Parties: WOJAN, v. IGL. BUTLER, v. IGL.
• Court: Wisconsin Supreme Court

Page 420

49 N.W.2d 420

259 Wis. 511

WOJAN, v. IGL.

BUTLER, v. IGL.

Supreme Court of Wisconsin.

Oct. 9, 1951.

Actions for damages arising out of a collision between the automobile driven by Ella M. Butler and the automobile driven by John A. Igl. The first action is brought by Marie Wojan, a passenger in the Butler car, against John Igl, Mrs. Butler and Car and General Insurance Corporation, Ltd. The second action is brought by Mrs. Butler againt Mr. Igl. The actions were consolidated and tried to a jury. Upon a special verdict judgment was entered in the first action for the plaintiff Wojan against Mrs. Butler and the insurance company. Judgment was also entered in favor of the defendant Igl against the plaintiff Wojan for costs. In the second action judgment was entered for the defendant Igl upon his counterclaim against Butler. Ella M. Butler and Car and General Insurance Corporation appeal from the judgments against them in both cases.

The accident occurred May 21, 1949 at the intersection formed by the junction of County Trunk Highway B, a blacktop road running east and west, with U. S. Highway 45, a concrete road which turns from a northerly course to a westerly course in a curve at the junction.

Mrs. Butler testified that she approached the intersection traveling north on Highway 45 at a speed of forty to forty-five miles per hour; that she first saw Igl when their cars were about eight hundred feet part. When about three hundred feet apart, Igl entered his left lane; she took her left lane; Igl swung back into his own lane; Mrs. Butler returned to her lane. Igl entered his left lane again about fifty feet from her car and the collision occurred. She further testified that the Igl car was on Highway 45 at the time of impact, but when the cars collided he swung onto the dirt road. The right front wheel of her car was on the blacktop Highway B at the time of collision. Mrs. Butler could not indicate on the map the position of the cars on the highway when she first saw Igl; she was not sure of distances on the map.

The testimony of Mr. Igl was that he approached the intersection traveling east on Highway 45 at a speed of about fifteen miles per hour. He first saw the Butler car about four hundred feet away. Mrs. Butler appeared to be traveling about sixty-five miles per hour when less than one hundred feet in front of him, but he concluded that he had time to get off Highway 45 and onto Highway B. He further testified that when the cars collided his car was entirely off Highway 45; one wheel of the Butler car was off the concrete of Highway 45. He did not brake his car before the accident, but rather accelerated in order to get off Highway 45. He contended his brakes were in good condition.

Edward Wolhaupt, Langlade county traffic officer and deputy sheriff, arrived at the scene of the accident shortly after it occurred and took measurements and photographs. The damage to both cars was on the right front. Wolhaupt testified as to the position of the cars and as to skid marks on the concrete. Based on observation of the Igl automobile at the scene of the accident, he signed a complaint against Igl charging operation of an automobile with improper brakes. Records of the clerk of the lower branch of the county court, Langlade county, showed that Igl entered a plea of guilty to driving with improper brakes, was convicted and fined.

Igl testified that he did not plead guilty to the charge of driving with improper brakes, but simply said he was willing to pay the costs.

Question 1 of the special verdict related to the negligence of John Igl. The jury found him negligent with respect to lookout and control; not negligent with respect to speed, defective brakes, yielding the right of way and position on the highway.

All subdivisions of Question 2 relating to causation in respect to the negligence of John Igl were answered 'No.'

In answering Question 3 the jury found Ella Butler negligent as to lookout, control, yielding the right of way and position on the highway; not negligent as to speed.

In Question 4 Ella Butler's negligence with respect to control, yielding the right of way and position on the highway was found to be a proximate cause of the collision.

In the answer to Question 5 the jury found that the plaintiff Wojan did not assume the risk of Mrs. Butler's negligence.

Question 6:

'In the event you find both parties were negligent and the negligence...