Bokelkamp v. Olson

36 N.W.2d 93 | Wis. | 1949

^* Motion for rehearing denied, with $25 costs, on April 12, 1949. Action commenced November 13, 1947, by E. H. Bokelkamp, plaintiff, against Oscar Olson, defendant, to recover damages resulting from a collision between the automobiles of plaintiff and defendant. The defendant counterclaimed. The case was tried to a jury, and a special verdict rendered. The jury found the defendant guilty of negligence with respect to proper lookout and the plaintiff guilty of negligence with respect to speed, lookout, right of way, and management and control, attributing seventy-five per cent of the negligence to plaintiff and twenty-five per cent to defendant. Upon motions after verdict, the court ordered judgment for the defendant in the sum of $587.88 on his counterclaim, together with costs and disbursements. From this judgment, dated May 24, 1948, plaintiff appeals.

A collision occurred about 11:50 a.m. within the intersection of County Trunk M and United States Highway No. 16 in La Crosse county, Wisconsin, between a car driven by the plaintiff and a car driven by the defendant. County Trunk M is a dirt highway running in a northerly and southerly direction. Highway 16 runs in an easterly and westerly direction. It is paved with concrete twenty feet in width and has dirt shoulders on each side twelve or thirteen feet in width. Highway 16 is an arterial highway with the usual arterial stop signs on each side. The stop sign on County Trunk M north of Highway 16 is located forty feet from the north edge of the concrete. A row of trees borders County Trunk M on the east at this point and extends within twenty-five feet of the north edge of the concrete. There are also trees along the north side of Highway 16 east of the intersection with County Trunk M. Highway 16 is level and straight. A motorist approaching Highway 16 from the north is able to see other cars upon the highway for at least a half mile east of the intersection after he passes the trees. The accident happened on a bright, clear day and the highways were dry. Each of the parties was familiar with the highways.

As is usual in these cases there is a sharp dispute as to just what caused the collision. The plaintiff testified that he was traveling in a westerly direction toward La Crosse at a speed of fifty to fifty-five miles per hour. When he was within approximately one hundred feet of the intersection he noticed the hood of defendant's car appearing from behind the trees located on the east side of County Trunk M north of Highway 16. He stated that he immediately blew his horn and applied his brakes, but that the defendant proceeded to enter the highway, completely blocking the same, and although he swerved to the left the right front of his car and the left front of defendant's car collided.

The defendant testified that he stopped at the arterial highway sign, which is located forty feet north of the concrete portion of Highway 16; that he looked in both directions and no car was visible on Highway 16. He admitted that at this point his view to the east on Highway 16 was obscured by the trees. He stated that he looked again without stopping before entering upon Highway 16 and first noticed the plaintiff's car about two hundred fifty to three hundred feet to the east just as he was driving upon the concrete; that the defendant immediately stopped with the front two wheels of the car about two feet upon the concrete. He testified that the plaintiff continued in the north lane of traffic and struck his car at that point. Defendant's wife, who was riding in the car, corroborated his testimony.

A filling-station operator located near the intersection testified he heard a horn and the squeal of brakes for about two seconds prior to the time he heard the crash of the two cars He did not see the collision. The appellant contends that the charge to the jury as to the respective rights of the parties immediately before the collision was erroneous and misleading and constituted prejudicial error. A portion of the charge was as follows:

"Now the defendant Olson was obliged to stop his automobile before entering Highway 16 and the exact point at which he was obliged to stop is not designated by any provision of the statute. He must come to a stop at least at the time he reaches the stop and go sign and he must stop at such a place before entering the other highway, the arterial highway, as will give him a reasonable opportunity to make observation of people approaching from his left especially and from his right as well on the arterial highway. In other words, he should stop where stopping and observing will be of use to him and it is for you to determine whether or not the stop was made at a point where he could reasonably make an observation of the highway that he was about to enter. It isn't necessary that he stop and make an observation that will enable him to see miles down either way on the highway he is approaching, but I think it is a fair statement of his duty that he is to stop at a point where he can see approaching cars about an equal distance from where he is on the approaching highway. If he does that, he has complied with the statute with respect to stopping before entering an arterial highway."

This court has clearly defined the duty of a motorist approaching an arterial highway. It has held that he must not only stop before entering upon an arterial highway but he must stop and observe where an efficient observation may be had. Svenson v. Vondrak (1930), 200 Wis. 312,227 N.W. 240; Pettera v. Collins (1930), 203 Wis. 81, 233 N.W. 545;Gumm v. Koepke (1938), 227 Wis. 635, 278 N.W. 447.

In this case it was the duty of the defendant to stop at some point south of the row of trees where he would have an unobstructed view of cars approaching on Highway 16 and he should have proceeded upon the highway only if he had reasonable grounds to conclude that he might do so with safety to himself and others. It has been held that this is true even if the approaching motorist had forfeited his right way by excessive speed. Paluczak v. Jones (1932),209 Wis. 640, 245 N.W. 655; Canzoneri v. Heckert (1936),223 Wis. 25, 269 N.W. 716.

It is our opinion that the instruction given by the trial court as to the duty of the defendant upon approaching the arterial highway was erroneous; that it tended to mislead the jury; and that it constituted prejudicial error. This instruction was referred to in that part of the charge as to right of way, and upon that point it also tended to mislead the jury.

Other questions were raised upon the appeal, but in view our decision herein it is not necessary that we pass upon them.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions for a new trial.