Opinion
February 2, 1959 —
March 3, 1959.
APPEAL from a judgment of the circuit court for Winnebago county: HELMUTH F. ARPS, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Dudley O. Emmert of Manitowoc.
For the respondent there was a brief by Allen B. Adams of Menasha, and Benton, Bosser, Fulton, Menn Nehs of Appleton, and oral argument by David L. Fulton.
Action by plaintiff Doris Zimmer against defendants Cyril F. Zimmer, Emanuel Hill, and State Farm Mutual Automobile Insurance Company, arising out of injuries sustained by plaintiff when the automobile in which she was riding as a guest, driven by her husband, Cyril Zimmer, collided with an automobile operated by Emanuel Hill. On a jury verdict finding both drivers causally negligent, judgment was entered for the plaintiff. Defendants Cyril Zimmer and his insurer, State Farm Mutual Automobile Insurance Company, appeal.
The accident happened on January 29, 1956, just outside the city of Appleton on U.S. Highway 41, an east-west highway, about 75 feet east of the intersection of Meade street, a north-south highway, which intersects Highway 41 at right angles. Highway 41 at the place of the accident is a black-top pavement 22 feet wide, with gravel shoulders of 10 to 11 feet wide. For a distance of 300 to 350 feet to the east and to the west of the point of collision the road surface was dry. About 150 to 175 feet east of the place of collision is an animal hospital with two driveways located on the north side of Highway 41, one being 28 feet in width and the other 38 feet.
It was about 5:10 p.m. While there is evidence that it was dusk, or "semidark," it is undisputed that visibility was good. Zimmer was driving west on Highway 41 at 45 miles per hour. He had his parking lights on. His wife, the plaintiff here, was seated beside him. Their two children were in the rear seat.
Hill was driving east on Highway 41 at approximately 50 miles per hour. At a point about 500 feet west of the intersection with Meade street he skidded on an icy spot in the road and lost control of his car. It crossed into the north lane of travel into the path of the Zimmer automobile and the cars collided head on.
The only question in the special verdict regarding Zimmer's negligence was as to management and control and the jury found him causally negligent in that respect. It found Hill causally negligent as to control and management and position on the highway. Judgment on the verdict was entered for the plaintiff accordingly.
Additional facts will be stated in the opinion.
It is appellants' position on appeal that Zimmer was confronted with an emergency not of his own making and that as a matter of law he was not negligent as to management and control.
Respondent maintains that no emergency confronted Zimmer; that he had both the time and opportunity to take precautionary measures to avoid the collision but failed to take such measures. In taking this position she relies upon Laughnan v. Aetna Casualty Surety Co. (1957), 1 Wis.2d 113, 120, 83 N.W.2d 747, where the following circumstances were present: The highway "contained icy patches and was slippery;" there was a light drizzle in the air. During the course of some fifteen seconds the plaintiff observed the approaching car of defendant's insured, Smith, following an "erratic course." Laughnan's only reaction was to take his foot off the accelerator and continue on his own side of the road. When the cars were almost in passing position the Smith car swerved sharply into the Laughnan car. This court said:
"Whether his [Laughnan's] was the conduct of an ordinarily prudent man under the circumstances was clearly a jury question, and the jury might find that by continuing as he did for some fifteen seconds after he saw Smith was in difficulty, thus reducing the time and space in which Smith might regain control, Laughnan impaired Smith's opportunity to do so. The emergency of the last few split seconds was thus in part created by Laughnan, which prevents the excuse of the emergency doctrine . . . from being available to him."
Hill testified that he was traveling at a speed of 50 miles per hour; that the pavements were icy in spots; that he put on his brakes at an icy spot, whereupon the car skidded and he lost control. This occurred about 500 feet west of the intersection. The car invaded the wrong side of the road about 250 feet west of Meade street and at that time the Zimmer car was east of the easternmost driveway of the animal hospital. Hill testified that after he started to skid he took his foot off the brake and concentrated on steering in order to get the car straightened out; that things were happening so fast that he did not know how far he got over on the other side of the road, but his car was over the center line at all times from a distance of 250 feet west of the intersection. He testified he intended to get his car off onto the north shoulder or into the north ditch before reaching the Zimmer car, but was unable to do so.
On the basis of Hill's testimony the Laughnan Case, supra, clearly governs. From that evidence the jury could well have believed that had Zimmer been paying proper attention he would have noticed the skidding of the Hill car and taken some precaution — either stopping or getting off on the shoulder or entering the driveway of the animal hospital — in order to avoid the collision. Zimmer testified that all he could see was that the Hill car was traveling at a slight angle. However, this is contradicted by the testimony of Hill that the car was out of control and at all times over the center line and Hill was trying to straighten it out.
The evidence is susceptible of the inference that, considering the distance between the two cars at the time the Hill automobile invaded the north lane and the speeds at which the cars were traveling, Zimmer had about seven seconds in which to act before the collision occurred. Had Zimmer greatly reduced his speed or stopped, as he testified he could have done, he would have enlarged the time and the distance in which Hill might have regained control. The jury had the right to conclude that his failure to do so constituted negligence as to management and control.
In holding that the emergency doctrine did not apply, the trial court said in its opinion:
". . . we may properly inquire whether under all the situations disclosed in the evidence in this case the defendant Zimmer can excuse his inaction when it became apparent to him, or ought in the exercise of ordinary care to have become apparent to him, that the defendant Hill had lost control of his automobile and would continue to invade the westbound lane of traffic. . . .
". . . Hill claims that he lost complete control. For a Considerable period of time after Hill's automobile invaded the westbound lane of traffic on U.S. Highway 41, his automobile was only partly over the center line. However, the defendant Zimmer kept on going with his automobile, and he testifies to no reduction of speed except only that he just pumped the brakes. The defendant Zimmer admitted having knowledge of the 10-to-11-foot-wide dry shoulder immediately to his right and he made no attempt to get out of the path of the Hill automobile."
By the Court. — Judgment affirmed.