*1 74
time the accident involved this and was not per- service for any his the time of said forming employer accident;” and thereto a by adding provision granting Western renew its motion for summary judg- ment affidavits. upon filing proper
By the Court.-—-The order is modified appealed set the manner forth the last paragraph opinion, and as so is affirmed. costs shall be No taxed on this clerk’s appeal, fees. appellant pay another, vs. Respondent, Appell Petlock, ants.* vs. Respondent, Appellants:
Miller, Same, another, Respondents.* 4, 1958.
January February * denied, costs, Motion for April 8, without 1958. *2 Holden & Schlos- there a brief by For the appellants Benton, Bosser, Fulton, attorneys, of Sheboygan, ser counsel, Menn Nehs & Appleton oral argument by David L. Fulton and John R. Holden.
For the there was a brief and oral respondents argument Neenah, Petlock, L. Cooke 0. Oshkosh, P. for Donna Mae Henry Hughes Miller. The accident occurred at a. m. Broadfoot, about 7:45 J. 18, 1954, on on State Trunk August about five Highway miles south of Oshkosh. The defendant Kickhafer was em at the near State located Osh ployed Winnebago Hospital brother, Pansie, kosh. She resided with her Ferdinand a farm near the of the accident. She was owner aof 1941 Nash automobile which she drove and from work. On would not start. morning *3 An was made to it with another car attempt but the push locked. The were her and bumpers bumpers disengaged car was then to a five 10 feet from the east pushed point of the From that the edge highway. point driveway sloped downward to the highway. the Starting opposite driveway there is a cent five for a dis per downgrade highway 200 feet the north. tance of about Upon approaching her Kickhafer automobile and in each looked highway a direction. She waited while truck on the passed highway, then looked in both directions and she re seeing nothing her car leased the brake and started down the coasting high her car to the north. She would sufficient hoped way gain so that when she let in momentum on the her clutch grade car start. She had reached a would about feet point of the and was either driveway north lane of the right-hand very proceeding high the Petlock car.* it was struck by when way but was Miss Petlock lived secretarial Ripon engaged Oshkosh, been for and had three approximately work of the accident. She was the to the date owner of prior years automobile. On morning Ford she a 1954 * Reporter. 78a. p. See post, in or near
had as four other who lived passengers girls Ripon her worked in also had with her and who Oshkosh. She about The sister who was twelve sister years age. young sat next to Miss Petlock and the Miller on the sat of the three side seat. The other sat right front girls the rear of the Petlock car. As she the scene of approached accident Petlock rounded curve reached slight hill at crest of a about the where the Pansie driveway point from the east. she entered When reached Kickhafer car about Petlock saw the driveway opposite 150 feet north of her on the also another She saw highway. car the north toward She from going approaching Ripon. car left with- not turn out to on the could pass out with the automobile she applied southbound colliding her and turned to the with the idea of brakes passing of the on the east shoulder the Kickhafer by driving highway. surfaced with a width black-top 22 feet with on each side the black-top.
about shoulders It had been during rained night misting had during Petlock testified that the Miss morning. pavement that she experience wet and knew previous driving difficult to on than dry pave that wet is more black-top stop that she realized she further testified ment or She black-top. between her and that existed the distance could not stop her brakes turned Kickhafer car. She applied *4 her car was wet and shoulder shoulder. right upon the left front of so1that from the shoulder swerved car. The Kickhafer rear of struck it facing that when it was stopped car swerved around whether There as to was some dispute direction. the opposite stopped was completely at a was or whether it proceeding to' the collision just prior event, car, if mov the Kickhafer In any rate of speed. low and not because gravity was proceeding ing, its motor. by generated power
78
The sole issue this presented upon was whether appeal Petlock as causally as a negligent matter of speed law. The was, appellants contend that she while the re contend that it spondents of fact for the question jury and the of the was in finding jury favor of Petlock. Kick hafer contends that the governed the cases of Uszler, Reuhl v. 516, 255 444, Wis. 39 N. W. (2d) Henthorn v. M. 1 180, G. C. Corp. Wis. 83 N. (2d) W. 759, and other (2d) cases therein cited. Both Petlock and Miller contend that those cases are not because of applicable differences the fact situations. Because of the differ ences in the facts the cases not be may used as but precedents laid principles down in those cases are In controlling. the Henthorn Case we with quoted from the approval Reuhl Case as follows (p. 188)
“ statute, when ‘Independent the view of the driver of an obstructed, automobile is whether reason of a grade otherwise, the of the car be speed should so reduced that the car can be within the distance the can driver see ahead. See v. 338, Zigler Kinney 250 (1947), Wis. 433, N. W. and Lauson (2d) v. Fond du Lac (1909), ” 57, Wis. 123 N. 629.’ W.
In each of those cases there was a collision between a vehicle and vehicle rear approaching in each of the cases it was determined that the driver had violated the rule enunciated and was therefore causally negli- with to his The same gent respect speed. rule is applicable here. Petlock’s view ahead was obstructed reason of the She was unable to see the or a car grade. thereon to the north of her until she reached the Pansie driveway. Because her connection her limited speed vision and the wet the wet shoulder she was black-top unable her car within the distance she could see stop ahead. We must, therefore, hold she was causally negligent as a matter of law. respect speed
78a is action in Petlock The which judgment Beverly The must be reversed and new trial ordered. par- plaintiff to be ties that in case the Petlock is found defendant agreed as a matter of law to causally negligent respect speed action, in Donna Miller Mae judgment settlement, must be modified the amount reducing be her insurance carrier recovered from and and, so $3,134.68. The will be modified judgment sum of as is so affirmed. in the Court.—-The which judgment
By reversed, Petlock is is and remanded cause plaintiff action in Donna for trial. The which a new judgment and, as above indicated Mae Miller is is modified as plaintiff modified, it is affirmed. 8, 1958: The was filed following April opinion Because rehearing). motion Broadfoot, (on for J. trial, for consolidated were argued above-entitled cases were written, the but one was and together appeal, opinion upon issues affecting motion raised joint separate each case. was case
In the which Beverly 76) statement opinion challenged (p. following about 150 feet north the drive- had reached point “She her car was either proceeding very way lane of the when it was struck upon right-hand Petlock car.” had that the defendant Kickhafer was found jury her automobile respect stopping causally negligent fact had been stated the opin- highway, therefore corrected read: ion. The sentence 150 feet north the drive- had reached a about “She lane of the right-hand way it the Petlock car.” when was struck 78b *6 the
Whether defendant Kickhafer was proceed- ing very the time of the collision would be imma- terial. The made does not affect the change outcome of the case and no in the mandate is change required thereof.
As a second the Petlock case it is contended that the defendants did not of award challenge damages upon that new trial appeal should not include the issue of In their brief the are damages. defendants state that they satisfied award jury’s of to damages Beverly and are to a in the mandate agreeable change accordingly.
In the case in which Donna Mae Miller was our plaintiff attention is called the fact that the awarded to damages $5,968.74. were Costs in the amount plaintiff of $300.62 taxed, were entered the sum judgment of Because of fact $6,269.36. that the defendant Petlock had made a settlement in the Miller case our recited opinion of Donna favor Mae Miller judgment should be half of reduced to one the amount of the or the judgment, $3,134.68. Plaintiff sum of Miller now contends that the been should have reduced one half of judgment only by the amount of the found damages jury, together the total amount costs. defendants this con- oppose tention. no authorities are cited either side con-
Although merit. Because the defendants settle, tention has refused to trial, Miller was required go wit- plaintiff produce nesses, that are the and to incur basis for expenses the taxa- costs and disbursements. tion of for is considered to The motion be a motion to Therefore the the mandate. mandate herein amend is amend- ed to read: judgment Court.—The
“By which reversed, is Petlock is and cause plaintiff remanded of the causal negligence trial on the issue a new not be retried. need as to damages The issue only. parties is Mae Miller action in which Donna The judgment the amount thereof to reducing modified affirmed.” and, as it is $3,284.99 sum costs. is denied without The motion for rehearing Hocking Administrator, Respondent, Davison, Estate
vs. Appellant. Hocking, *7 4, 1958. February January 7