Zenner v. Fischer

• Decision Date: 03 July 1953
• Citation: 59 N.W.2d 435,264 Wis. 393
• Parties: ZENNER, v. FISCHER et al.
• Court: Wisconsin Supreme Court

Page 435

59 N.W.2d 435

264 Wis. 393

ZENNER, v. FISCHER et al.

Supreme Court of Wisconsin.

July 3, 1953.

Action by plaintiff Clifford Zenner against defendant Eugene B. Fischer for damages arising out of a collision between the automobiles of the parties. In its special verdict the jury found plaintiff 100% causally negligent. On motions after verdict the court set aside the verdict and ordered a new trial on the ground that defendant was negligent as a matter of law in respect to speed, and a new trial was necessary for the comparison of negligence. From the order granting a new trial, defendant appeals.

At about 11:30 a. m. on January 11, 1952 plaintiff and defendant were both driving west on Highway 64 in Taylor county. The highway, a wide blacktop road running straight east and west, was slippery with packed snow and ice on the bottom and two to three inches of new wet snow on top. Defendant followed plaintiff's car. He first noticed it when he was about 600 feet from it; his speed was then 35 to 40 miles an hour. He came up to within 150 feet of plaintiff, who was going 'very slow.' Then he moved slightly toward the left lane, intending to pass, but he did not blow his horn 'because I didn't figure I was close enough to him to sound my horn.' He was two to three feet over the center line when plaintiff began to turn left at a private driveway without giving a signal of his intention to do so. Defendant swung his car back into the right lane and 'hit the brakes.' The cars were then about 100 feet apart and defendant was still traveling between 35 and 40 miles an hour. Defendant further testified that at the time plaintiff began his left turn defendant's car was two to three feet to the left of the center line. Before the impact plaintiff had turned his car back into the right lane and the collision occurred in that lane.

Leicht & Curran, Medford, for appellant.

William C. Mosher, Medford, for plaintiff-respondent.

Nikolay Law Office, Abbotsford, for interpleaded defendant.

MARTIN, Justice.

Appellant contends that the evidence presents a case involving the duties of a 'passing' motorist rather than a 'following' one and that the trial court therefore erred in applying the rule of Phillips v. Haring, 1952, 262 Wis. 174, 180, 54 N.W.2d 200, 203, where it was said:

'It is the duty of the driver of the following car, under circumstances where as here he has ample opportunity to do so, to have his car under such control or to maintain such a distance behind the preceding vehicle as will enable him to stop his car and avoid a collision.'

The facts of the Phillips case are very similar to this, except that there no hazard existed as to the road conditions. Appellant's argument seems to be that when he moved two or three feet out of his lane while 150 feet behind ...