Opinion
May 11, 1967. —
June 6, 1967.
APPEAL from a judgment of the county court of Douglas county: A. WALTER DAHL, Judge. Reversed.
For the appellant there was a brief by Crawford, Cirilli Sullivan of Superior, and oral argument by Arthur A. Cirilli.
For the respondent there was a brief by Hughes, Anderson, Davis Witkin, attorneys, and John P. Foley of counsel, all of Superior, and oral argument by Mr. Foley.
At 6 p.m. on February 13, 1965, defendant James Ellis was driving his 1962 Cadillac automobile in a westerly direction in the north lane on North Twenty-first street in Superior, Wisconsin. Defendant's car was pulling a trailer with a snowmobile on it. At this time Allan J. Dahl was walking in a westerly direction in the southern lane of pavement near the edge of the roadway. Defendant Ellis swung out to pass a car and struck Mr. Dahl, killing him. Dahl's wife brought this action for wrongful death against the defendant under sec. 331.04, Stats. 1963.
At trial defendant Ellis testified that as he was proceeding westerly on North Twenty-first street he came up behind a car, decided to pass, increased his speed to 30 miles an hour, and moved into the southern passing lane. As Ellis moved into the southern lane he noticed there were two cars ahead of him. When Ellis was slightly ahead of the lead car he glanced at his rearview mirror and also looked out the rear-side window of the car to see if his trailer was far enough ahead of this car to pull back into the right lane of traffic. At this time Ellis heard a thud and saw a blur by the left window. Ellis testified he never saw the deceased at any time prior to the impact, that he gave no signal audible or otherwise when he passed either of the two cars, and that he never left the blacktop portion of the roadway. Ellis testified that the damage to his automobile consisted of a crack in the extreme left front headlight and a broken-off rearview mirror on the driver's side. The accident occurred at dusk and it was difficult to see.
Mr. Andrew Karlon, one of the drivers passed by defendant just before defendant hit the deceased, testified that he saw the deceased walking along the roadway just before the accident. The accident occurred two days after a heavy snowfall and the snowbanks along North Twenty-first street were two to three feet high. Karlon testified the deceased was walking along the left-hand side of the road and all he could see was the deceased's legs. Karlon also testified that deceased was walking next to the left side of the highway, right off the edge between the blacktop and the snowbank, as close to the snowbank as possible.
Two other witnesses testified concerning the accident. Mr. Thomas Thompson testified that he went to the scene of the accident about an hour and a half after it occurred. Thompson observed a set of footprints leading from the deceased's car to the scene of the accident. These footprints, heading in a westerly direction, were on the south side of the road on the shoulder about 10 inches to a foot from the edge of the blacktop. The investigating officer testified that the deceased was wearing dark colored work-type clothing. The investigating officer also testified that the south half of the blacktop was about 11 feet wide, that the shoulder of the road was roughly six feet wide, that there were no tire marks on the south shoulder of the road, and that the light was very poor.
On this testimony the jury found the defendant causally negligent as to lookout. The jury found the deceased causally negligent as to lookout, but not negligent as to his position on the highway. The jury apportioned 80 percent of the total negligence to the defendant and 20 percent to the deceased. The trial court entered a judgment on the verdict after reducing the jury's award to the statutory maximum. Plaintiff appeals and defendant cross appeals.
The first issue presented on this appeal is what duty, if any, this pedestrian, walking on a highway in the left-hand lane, had of lookout to his rear.
Appellant contends that a pedestrian walking in the left-hand side of the road as sanctioned by statute has no duty to maintain a lookout to the rear.
In Mewhorter v. Integrity Mut. Casualty Co. our court discussed the specific problem, pertinent here, of whether a pedestrian on a highway in his proper lane owes a duty of lookout to the rear. The court said that failure to maintain such a lookout was not negligence as a matter of law. On the other hand, the court expressly refused to forbid the jury to find negligent lookout in the particular circumstances.
(1957), 275 Wis. 77, 80 N.W.2d 782.
"We think that on the evidence in this case, the jury might properly have held that Mewhorter failed to exercise the care with respect to lookout to the rear which an ordinarily prudent man would normally exercise in the circumstances, even though he was found to have been on the left half of the road. It was a dark, misty night, the visibility was poor, motorists were using windshield wipers, and the highway, which was black-top, only 22 feet wide, was icy and slippery in spots. The jury might have believed that Mewhorter was not at the east edge of the road, but was nearer the center line. In the circumstances the jury might properly have concluded that ordinary prudence dictated a lookout to the rear, and that Mewhorter was negligent in the premises. Hence we cannot escape the conclusion that the instruction was not only erroneous, but may have been prejudicial by giving the jury to understand that there was `no problem with reference to lookout to the rear' if Mewhorter was found to be anywhere in the left half of the highway."
Id. at page 82.
Thus, Mewhorter states that the duty of a pedestrian on a highway to maintain a lookout to the rear is premised on the duty to exercise reasonable care. We have no quarrel with the general statement of his lookout duty but as a matter of law we believe there was no duty of lookout to the rear in the instant case. There was no evidence from which the jury could reasonably infer that hazards were present which would require any reasonably prudent man in his position at the left edge of the traveled portion of the roadway to look to his rear. A pedestrian, such as the deceased, walking against traffic along the furthest edge of the traveled portion of the roadway and not being reasonably aware of any hazard to his rear by reason of car lights, the sounding of a horn, traffic conditions, or otherwise, does not have any further duty to observe to his rear.
The deceased had no duty of lookout to his rear and thus it is not necessary to consider whether or not there was evidence from which the jury could reasonably draw an inference of negligent lookout on the part of the deceased.
The crucial issue, also raised on this appeal, is whether deceased was negligent as a matter of law with respect to his position on the street.
Sec. 346.28 (1), Stats., requires that:
"Any pedestrian walking along and upon a highway other than upon a sidewalk shall walk on and along the left side of the highway and upon meeting a vehicle shall, if practicable, step to the extreme outer limit of the traveled portion of the highway."
There was some factual dispute as to deceased's position on the highway. All testimony placed deceased on the southern half of the roadway, at least as far south as the edge of the blacktop. The jury could believe this and find the deceased not negligent as to his position on the highway.
By the Court. — On appeal by plaintiff-appellant, judgment reversed; cause remanded with directions to change the answer in the verdict to assess 100 percent of the negligence to defendant-respondent, and to enter judgment thereon for the plaintiff-appellant.