Schemm v. Bruch, 29 N.W.2d 66

Schemm v. Bruch

29 N.W.2d 66 | Wis. | 1947

Action commenced July 26, 1946, by Esther Schemm and her husband, Edward Schemm, for damages arising out of an automobile accident. Judgment was in favor of plaintiff Esther Schemm, dismissing the complaint of Edward Schemm and discharging defendant Bruch. Defendant Elmer Streim and his insurer appeal.

Injuries were sustained by Esther Schemm, the wife, in an automobile collision between the Bruch car, in which she was riding, and the Streim car. Suit is against the host, Herbert F. Bruch, and his insurer, and against the third party, Elmer Streim, and his insurer. The latter parties appeal from the judgment, entered December 9, 1946, dismissing the action as to the host, Herbert F. Bruch and his insurer, and awarding judgment in favor of the plaintiff Esther Schemm for $5,774.49, damages and costs, against the defendant Elmer Streim and his insurer.

The accident occurred at about 11:30 p.m., on May 31, 1945, at the intersection of Highway 18, an arterial highway, and County Trunk Highway Y, east of the city of Jefferson. The Bruch car, in which the plaintiff Esther Schemm was riding, was going east on Highway 18, which is a concrete highway. The pavement was wet and slippery at the time. On the northwest corner of the intersection of Highway 18 and "Y," is a tavern and filling station. The defendant Elmer Streim had parked his car there somewhat earlier, and about the time the Bruch car was about three hundred feet from the intersection, Streim came out of the building and entered his car. He saw the approaching Bruch car as he started his motor. He drove his car a few feet forward, from the gasoline pumps onto "Y," where he turned toward the south, intending to proceed in that direction on "Y," and necessarily crossing Highway 18. He stopped for the arterial about two feet from the edge of the concrete of Highway 18. From there he saw the Bruch car approaching the intersection, but with his car still in low gear he proceeded to cross Highway 18, *231 continuously observing the approach of the Bruch car. He testified that he stopped his car just before the impact, when the front wheels of his car were south of the center of Highway 18.

Bruch first observed the Streim car when its lights were turned on just before Streim drove away from the filling station. Bruch continued to watch the Streim car and reduced his speed to about fifteen miles per hour until the Streim car stopped at the arterial. Then, assuming that Streim was recognizing his right of way, Bruch accelerated his speed somewhat. However, Streim proceeded onto Highway 18. Bruch was in doubt as to whether Streim was going to turn but swung his car to the right, or south, and the Streim car struck the back part of the front fender, running board, and door of the Bruch car. The impact caused the door of the Bruch car to fly open and plaintiff Esther Schemm fell onto the concrete. In getting up she experienced a sharp pain through her lower back. There is some dispute as to the exact nature of her injuries, but the testimony clearly indicates that since the accident she walks with difficulty, cannot sit for long without pain, and is unable to perform her duties as before.

By a special verdict the jury found: (1) That defendant Elmer Streim failed to exercise ordinary care in yielding the right of way to the Bruch car; (2) that this failure was a cause of the accident; (3) that defendant Herbert Bruch was not negligent as to management and control, lookout, or yielding the right of way; (4) that Bruch was confronted with an emergency not brought about by his own negligence; and (5) that plaintiff Esther Schemm's damages were $5,000 for personal injuries, including pain and suffering, $500 for loss of wages, and $115 for hospital and medical bills, amounting to a total of $5,615. Judgment was entered against Elmer Streim for that amount together with costs and, disbursements, making the total of $5,774.49. *232 Appellants contend that defendant Bruch was negligent as a matter of law and that the emergency doctrine should not have been applied exclusively to Bruch and that the damages were excessive.

When two automobiles approach or enter an intersection at approximately the same time, the driver of the car on the left is required by sec. 85.18(1), Stats. 1945, to yield the right of way to the driver on the right. Sub. (4) of this same statute provides that upon entering an artery for through traffic the operator of any vehicle that has come to a full stop, "as well as operators of vehicles on such artery for through traffic, shall be subject to the provisions of subsection (1)."

When these rules are applied to the facts of this case, the errors relied upon by appellants entirely disappear.

Appellant's car was parked at a filling station when the Bruch car in which respondent Esther Schemm was riding approached the intersection. Appellant was observed ;by the driver of the Bruch car at all times. The evidence accepted by the jury as controlling required the finding made in the special verdict that the right of way was in Bruch, and that appellant's failure to recognize this and to yield the right of way was a failure to exercise ordinary care, and that such failure. was a cause of the collision which resulted in injury to the *233 respondent. The two vehicles entered the intersection at approximately the same time, and the case is lacking in evidence of speed necessary to show a forfeiting of the right of way by the driver of the Bruch car.

Neither does this case appear to warrant the application of that part of the case of Reynolds v. Madison Bus Co. (1947)250 Wis. 294, 26 N.W.2d 653, where it was held that a driver on the right, although he does not forfeit his right of way, may be negligent if he insists on claiming that right when it is evident that the driver on the left is not going to yield. Bruch was held to be without fault in the matter of management and control of his car, in the matter of keeping a proper lookout, and in the matter of his effort to escape from the predicament or emergency in which he was placed by appellant's acts. It appears, as the jury found, that Bruch was confronted with an emergency. The unexpected happening, the unforeseen occurrence creating the condition considered to be an emergency under the evidence in this case, arose because of appellant's entry into the intersection against regulations. The well-established rules of the road relied on by Bruch were so disturbed by the appellant's act that Bruch was obliged to meet the emergency. The road was wet; to attempt to stop by putting on the brakes was dangerous. He chose to escape in what seemed at the time a reasonable way by turning to the edge of the arterial highway. There is no reason to apply the emergency doctrine to Streim, for the situation was created by his negligence.

Although there is contradictory evidence as to the exact nature of respondent Esther Schemm's injuries, the jury was entitled to believe that her disabilities and pain and suffering were substantial and were caused by the accident. There appears to be no ground for holding that the damages awarded were excessive.

By the Court. — Judgment affirmed. *234