*1 Defendant: Plaintiff and Respondent, Sickl, vs. another, Defendants Respondents: Belden others, Defendants and Appellants.* Pankratz January 1952. December * denied, costs, on March rehearing Motion for $25 amended. Mandate *3 For the there were briefs appellants Genrich & Ter- by Wakeen, Emil williger, Piehler, and A. attorneys, Walter H. Neil counsel, M. of Wausau, all Conway oral Herbert argument by Terwilliger.
For the David E. there was a brief respondent Quady by Ross, Lamb, Spohn, Stevens & and Frank A. attorneys, counsel, Madison, Ross and James F. all of Spohn oral James argument F. and Frank A. Ross. by Spohn
For the William Ellsworth Belden respondents and Con- Smith, tinental -there was a brief Casualty Company by Okoneski, Wausau, Puchner & Tinkham of and oral argu- ment Charles F. Smith. A number of errors are In our view assigned.
Gehl, J. of the case one need be only considered—the contention must be as a held matter plaintiff of law to be as or than that of greater Pankratz. We have held that it is in rare cases where will we disturb a jury’s and that the instances comparison negligence, in which it can be said as a matter of law that the negligence to, than, that of the equal defendant will be limited to cases where the ordinarily of each is the same kind and character. precisely Brothers, Hiller McGuiggan v. W. 97. that,— We have also said
“Where, however, it
of the
appears
is as a matter
than
plaintiff
of law
that of the defend
greater
ant, it is not
within the
of the
it
only
court but
power
the
M.,
the court to
duty
so hold.” Peters v. Chicago,
St.
299, 301,
P. & P. R. Co. 230 Wis.
We have also considered the relative of the parties where the failures were not of the same kind respective P., and character. Zenner v. M. Chicago, St. & O. R. Co. 352 124, 581; v. Northern
219 262 N. W. Sikora Great Wis. 283, 588; Chicago, R. Co. 230 282 Patterson v. Wis. N. W. P., 205, 63; M. Nayes St. & R. Co. 236 294 N. O. Wis. W. 141, 812; L. v. Milwaukee E. R. & Co. 237 N. W. Wis. 294 Johnson, 161, 590; DuBois v. Menden 238 Wis. W. v. Electric 2 (2d) Wisconsin Power 240 Wis. N. W. Co. 856; v. Dinger McCoy Co. Wis. Transportation Carlson, 26; 37 N. W. Gvora v. (2d) N. W. (2d)
No can be out that each more read than precedents case must be considered its facts. upon peculiar
We that from that conclude his own it testimony appears was, law, the as a matter as negligence of as or than that of Pankratz. As the he approached scene he the rate of about miles driving fifty hour; when he was about blocks he saw some four away him; him; bright coming toward blinded they he of the blind area when he passed out first observed him; Sickl truck feet ahead of he not fifty did forty decrease his before he observed truck and at that went on to that even after brakes say applying he before did not slow down to time point “up directly He was asked: impact.” “Q. Now, words, to in Mr. I want you other blocks four this From the time that were you get straight: toward you, north those were they lights, coming until and as became closer you you approached they from feet sixty away to a where were they you got point ? A. Right. those were blinded you, you continually lights “Q. lights they approached And you approached in other intense severity, became more blindness you, words, caused vision your it more severe and became A. Right. more obscured?
“Q. in that time did not lower you any way your During rate of is that correct? A. Right. speed,
“Q. a is that You did not car to correct? bring your stop, A. Right.
“Q. You did not brakes? A. When? apply your “Q. that time until the blindness ceased. A. During Right.” a “When situation on is such that one’s highway obscured, vision is it is óne’s to slow down completely duty or even until the cause of such obscured vision is stop least in removed. one’s vision Whether [Citing cases.] dust, obscured or dense completely by blinding lights, smoke seems immaterial.” Mann v. Reliable Transit qüite 465, 468, 415, Co. 217 Wis. 259 N. W. quoted approval 215, in v. Wisconsin Guderyon Co. 240 Telephone Wis. 2 N. W. (2d)
The facts in this case with
to the conduct of
respect
Quady
in
are
similar to those
Pietsch v. McCarthy,
quite
present
159 Wis.
W.
where
plaintiff, proceed-
hour,
at the rate of from ten to thirteen miles
his
ing
in
vision so dazzled
by headlights coming
opposite
direction that he could not see defendant’s unlighted wagon
him,
ahead of
that situation
distance of one
proceeded
hundred feet without
his
until he
reducing
bumped
into defendant’s
which he did not -seeuntil he struck
wagon,
it.
there that
We held
guilty
Lac,
a matter
Lauson v. Fond du
of law. See also
N.
“Every person operating driving shall, about to the when public highways approaching, other or a motor vehicle pass, any person operating driving direction, dim, or tilt the traveling opposite depress, on his motor vehicle front so headlights rays not blind the such therefrom will whom projected person and about to . . .” driver is pass. approaching was for the found jury. Upon ample testimony jury that he did so fail.
Thus, who, we have the whether one when question car, an fails to dim his approaching oncoming blinds the driver can be held to thereby ápproaching be aof of than the other guilty greater degree negligence who, when as as much four blocks when he first áway blinded, becomes on so blinded without proceeds reducing other for his own taking any steps until safety he a reaches at which disaster cannot be averted. point We think not.
We consider that the accident was attributable to the to at least the negligence Quady same extent as it was to that of Pankratz. It is difficult for us to conceive any than for an automobile driver to continue to proceed the rate of miles hour without fifty per any effort to slow down or take other a for distance precaution four nearly blocks when so blinded as to render it impossible for him to see an object ahead of him on the until too late to avoid highway it. A fail- striking complete ure on the attention to the part Quady give probable of his conduct consequences here. It appears amounts to a as can degree charged any of the acts of defendant Pankratz.
354a contributed The found that jury plaintiff’s negligence Belden, 14.17 cent. 15.42 cent and that of defendant per per Belden. This from finding prevents recovery Quady Defendant Sickl was found to have contributed 47.08 served cent to the accident. Notice of upon appeal fact, him. he made no He made no motion for review—in him, the this As to presentation appeal. judgment upon must be affirmed.
By Court.—That judgment awarding Sickl, defendant, recovery by Joseph plaintiff against *7 is affirmed. That recovery by part judgment awarding defendants, Pan- plaintiff against Raymond John kratz, Mutual Hub and City Employers Jobbing Company, Wisconsin, directions is reversed with Liability Company that as to be dismissed. said defendants the complaint
The 1952: memorandum was filed March following E. motion David (on rehearing). (1) Per Curiam. for motions, husband Ouady’s surviving and individually costs. E. are with Mollie for denied rehearing, are of the mandates motions for amendment (2) Appellants’ costs, so as to without and the mandates are amended granted That of the adjudging include following: judgment part for contribution that shall have judgment Sickl Joseph defendants, Pankratz, Hub City Raymond against John Mutual Com- Liability and Jobbing Company, Employers Wisconsin, half of all sums that he shall for one pany in excess of half of the to the one plaintiff’s pay reversed, herein, interest, is with directions with judgment defendants, the cross for contribu- that as to said complaint be dismissed. That of the tion by Joseph (3) Ellsworth costs favor of William Belden judgment taxing against Raymond and Continental Casualty Company
354b Pankratz, Hub City Employers Jobbing Company,
John reversed, Mutual Liability Wisconsin Company vacated; directions that said portion judgment Belden and Com- Casualty Continental respondents are to have costs on this pany appeal against Raymond John Pankratz, Hub City Jobbing Company, Employers Mutual Liability Company.