Opinion
September 14, 1955 —
October 11, 1955.
APPEAL from judgments of the circuit court for Milwaukee county: LEO B. HANLEY, Circuit Judge. Affirmed.
For the appellants there were briefs by Arlo A. McKinnon and Charles M. Hanratty, both of Milwaukee, and oral argument by Mr. Hanratty.
For the respondents there was a brief by Quarles, Spence Quarles, attorneys, and Edmund W. Powell of counsel, all of Milwaukee, and oral argument by Mr. Powell.
Actions for wrongful death instituted by the plaintiff administrators of the estates of Nikola Mlinar, John E. Theisen, and Steve Rupcich against the defendants Olson Transportation Company, American Mutual Liability Insurance Company (its insurance carrier), and Celestine Bretl. The three actions were consolidated for purposes of trial,
Mlinar, Theisen, and Rupcich lost their lives while riding as passengers in a Buick automobile owned and operated by one Ervin Galonski which collided with a Mack combination tractor-trailer unit owned by the defendant Olson Transportation Company and driven by the defendant Bretl. The accident occurred on April 23, 1949, at about 1:55 a. m., within the clover-leaf interchange of U.S. Highways 141 and 57 in Ozaukee county about five miles south of the city of Port Washington.
The tractor-trailer unit was proceeding in a southerly direction on Highway 141, while the Buick had been traveling in a northerly direction on the same highway prior to entering the interchange. There are two concrete overpasses within such interchange which will be referred to as the north and south overpasses. As each of these two highways enters the interchange from the north, and also from the south, it divides into two separated one-way traffic lanes, the concrete paved portions of which are 20 feet in width. The westerly one-way traffic lane of Highway 141 carrying southbound traffic crosses over the top of the north overpass, and, after proceeding several hundred feet beyond, merges with the paved portion of the westerly traffic lane of Highway 57 so as to absorb southbound traffic on Highway 57 changing over to said Highway 141. Proceeding south from such last-mentioned point, said west traffic lane of Highway 141 proceeds underneath the south overpass and then, after proceeding a few hundred feet, merges with the east traffic lane of Highway 141.
Northbound traffic on U.S. Highway 141 intending to continue north of the interchange on such highway, upon entering the interchange, continues in the easterly traffic lane of U.S. Highway 141, which traffic lane neither proceeds over or under either of the two overpasses, but is located some distance to the east of both overpasses. Northbound traffic on Highway 141 intending to use Highway 57 north of the intersection proceeds several hundred feet north of the point aforementioned, where the southbound and northbound one-way traffic lanes of Highway 141 merge at the south limits of the interchange, to a point where another one-way traffic lane branches off in a northwesterly direction passing underneath the north overpass and thereafter merging with Highway 57 at the northwesterly limits of the interchange.
Large, well-marked, and well-placed traffic signs clearly indicate to users of the interchange which particular lanes are to be used for both southbound and northbound traffic.
Galonski, operating the Buick, as he entered the southeast point of the interchange, at the point where the northbound and southbound traffic lanes of Highway 141 merge, took the left, or westerly, one-way traffic lane reserved for southbound traffic, thus proceeding on said traffic lane in the opposite direction to that directed by the posted traffic signs, and proceeded under the south overpass to the point where said traffic lane merged with the southbound traffic lane of Highway 57 and then beyond said point some distance. A collision between the Buick and the tractor-trailer unit occurred head on on such southbound one-way traffic lane of Highway 141 about six guard posts south of the south end of the north overpass.
The entire interchange was well-lighted with yellow-amber, or greenish-yellow, sodium vapor lights. The distance between the north and south overpasses is 1,100 feet. The distance from the north end of the north overpass to the point where the southbound one-way traffic lane of Highway 141 merged with Highway 57 is approximately 560 feet.
Mlinar, Theisen, Rupcich, and Galonski were fellow employees at a Milwaukee manufacturing plant and had worked until midnight, April 22, 1949. Shortly after checking out from work that night they left Milwaukee in Galonski's automobile for a week-end fishing trip at a cottage in Marinette county. About one mile south of the point of collision, an Ozaukee county traffic officer observed the Galonski automobile proceeding at an excessive rate of speed in a northerly direction on Highway 141, and gave chase. It was the testimony of such traffic officer that the speed of the Galonski car approached 90 miles per hour part of the time, and that it entered the interchange, where the accident occurred, at a speed of from 65 to 70 miles per hour. All four occupants of the car were killed as the result of the collision.
The actions were tried to a court and jury, and at the conclusion of the taking of testimony counsel for the defendants moved for a directed verdict, which motion was granted by the trial court. Judgments were thereupon entered in each of the three actions dismissing the complaints upon their merits and awarding the defendants costs. From such judgments the plaintiffs have appealed.
It is the contention of counsel for the plaintiffs on this appeal that there was sufficient credible evidence in the record to support a jury finding of negligence upon the part of the defendant Bretl, both as to lookout and management and control, and, therefore, it was error on the part of the learned trial court to have directed a verdict for the defendants.
With respect to the issue of lookout, it was the testimony of Bretl that he first observed the approaching Buick when the tractor-trailer combination was entering the north overpass and that the Buick was then 300 to 500 feet distant. He also testified the Buick was then at the point where the west traffic lane of Highway 141 merged with Highway 57. The distance from the north end of the north overpass to such point of merger is 560 feet.
The course of the west or southbound traffic lane of Highway 141 within the interchange is that of a curve. One of the briefs refers to the interchange as being in the form of a pretzel, which is rather an accurate description. The general direction of such west traffic lane of Highway 141 to its point of merger with Highway 57 is southwesterly, while such direction from the point of divergence with Highway 57 to the south overpass is southeasterly. It is the contention of plaintiffs' counsel that, in spite of some difference in elevation, Bretl could have seen the approaching Buick for a distance of approximately 1,100 feet, and, therefore, a jury issue was presented as to whether Bretl should not have seen the Buick sooner than he did.
In Bachmann v. Bollig (1955), 270 Wis. 82, 70 N.W.2d 216, this court held that the failure of an automobile driver to see an approaching vehicle across a curve did not present a jury issue as to lookout under the facts of that case. In the instant case it would also have been necessary for Bretl to have looked to his left across a curve in order to have seen the Buick sooner than he did. Furthermore, Bretl was required to direct most of his attention to the right, because of the danger of possible approaching traffic on Highway 57 crossing into the west traffic lane of Highway 141 at the point of merger. It is our conclusion that Bretl could not have been found negligent as to lookout for failing to have seen the Buick more than 560 feet from the point of impact.
We deem that the issue as to whether a jury issue is presented as to Bretl's management and control to be a closer question than that of lookout.
Bretl testified that as soon as he saw the Buick approaching in the west or southbound one-way traffic lane of Highway 141 he applied his brakes in a pumping manner and continued to so apply them until the point of impact. The tractor was equipped with a tachograph which recorded the speed of the tractor-trailer combination unit at all times. Such tachograph record disclosed that the unit was traveling at a speed of 43 miles per hour just before applying the brakes and that the speed had been reduced to 22 miles per hour at the point of impact. The tractor-trailer unit weighed 11,000 pounds, and was loaded with 20,000 pounds of iced fresh fish, so that the total gross weight was 31,000 pounds. The record is silent as to the distance required to bring the unit carrying such load to a full stop from a speed of 43 miles per hour. There is nothing to indicate that the speed of the Buick, which was from 65 to 70 miles per hour when it entered the interchange, was reduced at all prior to the accident.
Bretl testified that the reason that he applied the brakes in a pumping manner instead of with a continuous downward pressure was to avoid "jackknifing" the heavily loaded unit which would have been likely to tip it over. Plaintiffs called as a witness one Mickelson, who was an expert in servicing Mack trucks and tractors, and Mickelson testified that under the circumstances he would have applied the brakes full force instead of in a pumping manner. However, on cross-examination, Mickelson admitted that if the brakes had been applied full force there was danger of locking the wheels which would result in skidding and possible jackknifing. In any event, the proper test was not that which Mickelson would have done in the situation facing Bretl but what was the proper or accepted method of applying brakes and stopping the unit employed by the average prudent driver under similar circumstances.
Under the time computation most favorable to plaintiffs there was but the lapse of a maximum of three and one-half seconds from the moment Bretl first saw the Buick wrongfully proceeding against traffic in the one-way traffic lane until the impact. As Bretl stated it, the accident occurred within "the wink of an eye" after he first sighted the Buick. It is clear that under the circumstances, Bretl was faced with an emergency as a matter of law. Havens v. Havens (1954), 266 Wis. 282, 63 N.W.2d 86; Raddant v. Tamminen (1954), 266 Wis. 49, 62 N.W.2d 428; Hoehne v. Mittelstadt (1948), 252 Wis. 170, 31 N.W.2d 150; and Feisinger v. Bard (7th Cir. 1952), 195 F.2d 45. His duty therefore was to make "such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice." Klas v. Fenske (1946), 248 Wis. 534, 546, 22 N.W.2d 596.
We conclude that a finding of negligence on the part of Bretl as to management and control could not be predicated upon the manner in which he applied his brakes. Furthermore, it would be sheer speculation to assume that the accident would have been avoided if he had been able to have brought the tractor-trailer unit to a full stop.
Counsel for plaintiffs argue further that Bretl might have avoided the accident by turning the tractor-trailer unit out of the path of the oncoming Buick. It was Bretl's testimony that both vehicles were proceeding in the west half of the southbound one-way traffic lane of Highway 141 and met head on there and then after the impact moved into the east half of such traffic lane. Traffic officers testified that oil and water spots and most of the debris were found in the east half of such traffic lane, which would indicate that the impact occurred there, although photographs showed marks on the west half of the pavement. We consider that the evidence would have permitted a jury to reach any one of the following conclusions: (1) That the collision occurred in the west half of the southbound traffic lane as testified to by Bretl; (2) that it happened in the east half of such traffic lane as a result of both vehicles continuing the same course as they had been immediately prior thereto; or (3) that both vehicles had been proceeding in the west half of such traffic lane and then just prior to the impact both had swerved into the east half so as to come together head on there.
Inasmuch as Bretl had an equal right to travel in the east half of such one-way traffic lane as he did the west half, it would appear to us to be immaterial which of the aforementioned hypotheses he adopted. It would not have constituted negligence on the part of Bretl, faced as he was with an emergency in no way traceable to any neglect on his part, to have either turned into the opposite half of the roadway in an attempt to avoid an accident, or to have continued in his original course in the expectation that the other vehicle would turn to one side or the other to prevent a collision. This court, in Hoehne v. Mittelstadt, supra, held that failure of a driver faced with a sudden emergency to do anything within the space of two and one-half seconds was not negligent as a matter of law. In the instant case Bretl was operating a heavily loaded tractor-trailer unit having an over-all length of approximately 40 feet which cannot be maneuvered from one side of a highway to the other as quickly or easily as an ordinary automobile.
We, therefore, conclude that the learned trial court properly determined that there was no credible evidence upon which a jury might have found the defendant Bretl guilty of causal negligence either as to lookout or management and control.
By the Court. — Judgments affirmed.