28 N.W.2d 925 | Wis. | 1947
Action commenced April 22, 1946, by J.W. Cartage Company, a Wisconsin corporation, and American Automobile Fire Insurance Company, a foreign corporation, by virtue of subrogation through a collision policy, plaintiffs and respondents, against Edwin Laufenberg and Milwaukee Automobile Insurance Company, Limited, Mutual, a Wisconsin corporation, defendants and appellants, to recover property damage sustained as a result of a collision between a tractor-trailer of the Cartage Company and an automobile owned and operated by the defendant Laufenberg. Defendants appeal from a judgment in favor of plaintiffs in the amount of $1,128.30 damages and costs, entered December 10, 1946. The accident out of which this action arose happened at the intersection of Racine street and Ray street in the city of Delavan, Wisconsin, February 19, 1946, about 4:15 p.m. Racine street extends east and west, and is intersected at right angles by Ray street. Both streets are concrete surfaced and about thirty feet wide, and were slippery at the time of the accident. Defendant Laufenberg was operating a Studebaker sedan between twenty and twenty-five miles an hour in an easterly direction on Racine street, intending to turn north on Ray street and proceed to his home on that street. August Corrao was operating an empty tractor-trailer, *303 owned by plaintiff J. W. Cartage Company, east on Racine street about twenty-five feet behind defendant's sedan as they approached the intersection. He was returning to Milwaukee from Janesville where he had delivered a load of empty cartons, and first noticed Laufenberg's car ahead of him about three fourths of a block west of the intersection where the accident happened. Laufenberg first observed the tractor-trailer when he was about one hundred fifty feet west of the intersection. Corrao testified he sounded his horn, indicating his intention to pass defendant's car, when he was in the center of the block west of the intersection and increased his speed to pass the defendant. He was traveling twenty-seven miles an hour and was on the left side of and even with defendant's car as they entered the intersection. Defendant and the driver of a car following the tractor-trailer testified they did not hear Corrao sound his horn. Defendant turned left without signaling, and the left front fender of his car struck the front of the tractor-trailer. Corrao turned left to avoid a collision and lost control of his tractor-trailer, striking a hydrant and then a tree on the northeast corner of the intersection, damaging the tractor so that it was later junked.
In a special verdict the jury found the defendant failed to exercise such care as the great mass of mankind ordinarily exercises when acting under the same or similar circumstances with respect to, (a) giving a plainly visible signal of intention to turn left, and (b) turning left at an intersection without first ascertaining that such movement could be made with safety to the plaintiff's vehicle approaching from the rear, and that such negligence was causal. The jury, however, found the defendant was not negligent with respect to the position of his car on the highway at the time he made the left turn. August Corrao was found guilty of causal negligence with respect to passing at an intersection, and negligence was apportioned sixty per cent to the defendant and forty per cent to August Corrao, driver of the Cartage Company tractor-trailer. *304
Defendant contends he was entitled to judgment on the verdict because the jury found he had his car in the right position to make a left turn at the time of making it as required by sec.
In making this argument defendant fails to give consideration to sec.
The question of apportionment of negligence raises a more difficult question. Corrao was attempting to pass at an intersection. He was traveling twenty-seven miles an hour in a twenty-five-mile zone, by his own admission, although the question of speed was not submitted to the jury because it had not been placed in issue by the defendant in his pleadings. SeeMaurer v. Fesing (1940),
Defendant was guilty of negligence by deviating from the traffic lane in which he was operating his car without first ascertaining that such movement could be made with safety to vehicles approaching from the rear, and Corrao, driver of the large tractor-trailer equipment was guilty of negligence by attempting to pass in an intersection. While we are well aware that the comparison of negligence was for the jury, from a *306 careful examination of all the evidence it is considered that the driver of plaintiff's tractor-trailer was guilty of at least as much causal negligence as the defendant. This requires a reversal of the judgment.
By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment dismissing plaintiffs' complaint.