Zindell v. Cent. Mut. Ins. Co. of Chi.

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: Zindell v. Cent. Mut. Ins. Co. of Chi., 222 Wis. 575, 269 N.W. 327 (Wis. 1936)
• Decision Date: 13 October 1936
• Parties: ZINDELL et al. v. CENTRAL MUT. INS. CO. OF CHICAGO et al.

222 Wis. 575

269 N.W. 327

ZINDELL et al.

v.CENTRAL MUT. INS. CO. OF CHICAGO et al.

Supreme Court of Wisconsin.

Oct. 13, 1936.

Appeal from a judgment of the Circuit Court for Walworth County; E. B. Belden, Judge.

Affirmed.

Action by E. E. Zindell, Marie Zindell, and Katherine Zindell against Britton Motor Service, Inc., and Delbert Arnold, and their respective automobile liability insurance carriers to recover damages to a building, which belonged to E. E. Zindell, subject to interests in his coplaintiffs, as the result of a collision between two motor vehicles alleged to have negligently been operated by the defendants above named. The defendants filed answers denying liability. Upon a trial by jury the court submitted questions for a special verdict. The jury, in addition to assessing plaintiffs' damages, found that those damages were the result of causal negligence of the driver of the Britton Motor Service, Inc., and that Arnold's driver was not negligent. Upon the verdict, judgment was entered for the recovery of plaintiffs' damages from the Britton Motor Service, Inc., and its insurer, and the dismissal of the complaint against Arnold and his insurer. The Britton Motor Service, Inc., and its insurer appealed from that judgment.Rouiller, Dougherty, Arnold & Kivett, of Milwaukee, for appellants.

Godfrey & Arnold, of Elkhorn, for respondents.

Moran & O'Brien, of Delavan, for defendants.

FRITZ, Justice.

The plaintiffs in this action seek to recover for damage to a garage located at the intersection of highways 14 and 15, as the result of a collision between a truck which was owned by the defendant Arnold, and was eastbound on No. 15, and a truck which was owned by the defendant Britton Motor Service, Inc., (hereinafter referred to as Britton), and was northbound on No. 14. Each outfit consisted of a heavy 4-wheel tractor hauling a 2-wheel trailer. The collision occurred in the intersection on March 26, 1935, at 2:15 a. m. Both highways were concreted to a width of 35 feet. Traffic was controlled by automatic electric signal lights at the corners, with trip bars in the pavement, which were depressed upon wheels passing over them. The trip bar for the eastbound vehicles on No. 15 was 166.2 feet west of the center of the intersection, and the bar for northbound vehicles on No. 14 was 204.5 feet south of that center. If the red light was against an approaching vehicle, crossing a trip bar when there had been no traffic on the intersecting road for a period of five seconds, then upon that vehicle crossing the bar that red light remained so for 2 seconds, and then turned to green; and the green light on the intersecting road turned to amber for 2 seconds, and then to red. If, immediately after the vehicle approaching against the red light passed over the trip bar, another vehicle approaching on the intersecting street passed over the bar on that street, the light immediately flashed amber on the street that had the green light, and remained amber for the 2-second amber period and an additional 2-second period; and the red light remained on the opposite street for the 4-second interval, and then turned to green and remained so for a period of 7 seconds in favor of the driver who first passed over the bar.

The jury found, in answer to questions submitted for a special verdict, that the damage to the garage was caused by the negligence of the driver of Britton's truck in respect to lookout, management, and control; and that, on the other hand, Arnold's driver was not negligent in respect to lookout, management, or control. The appellants contend that the court erred in approving the jury's finding that Arnold's driver was not negligent.

The only person called to testify as a witness, who was at the intersection at the time of the collision and then observed what occurred, was Virgil Arnold, the driver of the Arnold truck. The Britton truck driver was killed in the collision. There was also a helper on each truck, but neither of them was awake at the time of the collision. Arnold's testimony warranted the jury in fairly considering the following facts established. As Arnold approached the intersection, driving eastward, he saw that the traffic light was red and, therefore, took his foot off the accelerator and slowed down to 15 miles per hour as his truck rolled down an incline and over the trip bar. When he was 90 feet from the center of the intersection, that red light changed to green. When he was 60 feet from the center of the intersection, or 25 feet before he entered it, he looked to the south and saw the headlights on Britton's truck about 175 feet south of the intersection. He could not estimate its speed with certainty, and it appeared coming along with no indication of stopping. Because the green light was in his favor, he figured that he had plenty of time to go on across. However, when he was about 9 feet into the intersection or that distance west of the center thereof, he saw that the Britton truck was continuing and entering the intersection at a rate which told him that it was not intended to bring it to a stop, and that if he then stopped there would be a head-on collision. To avoid that he desperately attempted to swerve to his left, but when he was 9 feet east of the center of the intersection, the Britton truck, which was still approaching head-on, struck the middle of the right side of the Arnold tractor. The front part thereof crashed into plaintiff's garage, and it came to a stop with its cab wedged into the wall. Skid marks made by the Britton truck commenced 3 feet south of the center of the intersection and extended 9 feet to the east.

[1][2][3] The only testimony materially in conflict with that of Arnold is testimony by the driver and a helper of another Britton truck, who claimed that, as they were following 400 feet behind the Britton truck which was in the collision, they saw that the signal light was green for northbound traffic when that truck entered the intersection, and that while it was doing so the Arnold truck dashed in ahead of it. However, the testimony of those two witnesses, and particularly their statement that the second Britton truck was following at a distance of but 400 feet, was rendered decidedly incredible by the testimony of three disinterested witnesses, who arrived at the intersection shortly after the crash. However, notwithstanding that conflict in testimony, the record well warranted the jury in believing that Arnold's driver, upon crossing the trip bar at 15 miles per hour, had the green light turn in his favor when he was 90 feet from the center of the intersection; that when he was 60 feet from that point he saw the Britton truck headlights 175 feet south of the intersection, and, in the exercise of ordinary care, believed that he had time to cross safely because he had that light in his favor; that he did not then realize and, in the exercise of ordinary care, ought not to have realized, that the Britton truck would, in violation of sections 85.12 (3) and 85.75, Stats., continue, without stopping or even slowing down, in utter disregard of the fact that the signal lights had turned against northbound traffic, and were in favor of east and westbound vehicles; and that it was not until Arnold was about 9 feet into the...