Opinion
March 11, 1941 —
April 15, 1941.
APPEAL from a judgment of the circuit court for Brown county: AROLD F. MURPHY, Circuit Judge, Presiding. Reversed.
The cause was submitted for the appellant on the brief of Max H. Strehlow of Green Bay, and for the respondent on that of Chadek, Cornelisen Denissen of Green Bay.
Action commenced February 15, 1939, by Lee H. Cranston, against the Railway Express Agency, Inc., for property damage to the plaintiff's automobile due to a collision with a truck of the defendant. From a judgment entered in favor of the defendant, plaintiff appeals.
The collision occurred January 13, 1939, in the city of Green Bay at about 3:40 p.m. Plaintiff's wife as bailee was driving the car east on Walnut street, and defendant's agent was driving south in an alley which crossed Walnut street about one hundred feet west of Washington street. The streets were glazed with ice. The front end of plaintiff's car struck the right rear end of defendant's truck.
The driver of plaintiff's car saw the truck standing in the alley at the north sidewalk of Walnut street when she was about one hundred fifty feet west of the alley intersection. She testified that she judged she was about sixty feet west of the alley when she first saw the truck emerge. Defendant's driver testified he looked after stopping at the north sidewalk to allow a person to walk across in front of his truck, but he saw no cars coming. He then proceeded straight across the street which is an arterial highway without looking again or without seeing plaintiff's car.
Trial was to the court and jury. By a special verdict the jury found defendant's driver causally negligent in failing to yield the right of way and as to lookout. Judgment, notwithstanding the verdict, was entered in favor of defendant, from which plaintiff appeals.
The jury in its answers to the special verdict found that the driver of the respondent's truck failed to exercise ordinary care as to lookout and yielding the right of way to appellant's car. The testimony was such that a jury question as to those important and ultimate facts existed. It was therefore error to deny appellant judgment on the verdict. While the truck was standing in the alley it was seen over the tops of parked cars by the driver of appellant's car when she was coming off the bridge or passing the filling station some one hundred fifty feet away from the line of travel of the truck. There is testimony to be considered reliable, and evidently was so considered by the jury, that the driver of appellant's car was sixty feet away from the course taken by the truck at the time the truck was emerging from the alley. The driver of appellant's car appears to have given attention to surrounding conditions, including the truck as it stood in the alley and as it came out on Walnut street. Although she looked at the truck from points about one hundred fifty feet, eighty-three feet, and sixty feet from the intersection, she did not see it moving so as to threaten interference with her progress in her line of travel. She was only a few feet further from the place of collision than was the truck.
As the appellant's car was driven by a bailee there is no question of contributory negligence in this case. Calumet Auto Co. v. Diny, 190 Wis. 84, 208 N.W. 927.
Because defendant's driver was emerging from an alley and crossing an arterial highway, it was his duty to stop and to yield the right of way to all vehicles approaching on such highway. Secs. 85.18 (8), (9), and 85.69, Stats. The right of way is defined in sec. 85.10 (35), Stats., to be "the privilege of the immediate use of the highway." Had defendant's driver observed these duties, manifestly no accident would have occurred. Under the law of this state a driver entering upon an arterial highway has a duty to stop and observe traffic on that highway when he is at a point where an efficient and unobstructed observation may be had. Paluczak v. Jones, 209 Wis. 640, 644, 245 N.W. 655; Canzoneri v. Heckert, 223 Wis. 25, 29, 269 N.W. 716; Gumm v. Koepke, 227 Wis. 635, 641, 278 N.W. 447. The car was plainly visible, and had defendant's driver used ordinary care and caution he would have seen it. His own testimony that he proceeded across without looking either to the left or right is evidence which supports the verdict of the jury in plaintiff's favor.
The driver of the truck testified that he did not see the car; that he knew cars going east at that place would have difficulty in stopping as they approached his line of travel. Although the driver of appellant's car was either eighty-three feet or sixty feet from his line of travel he said: "I saw no cars. There were no cars on the south side close enough to prevent turns into the alley there; no cars there within a short distance. As I took my view I started to go across. Thereafter I did not look again to my right or left. I shifted gears; it is only forty feet across. If any car was close in I would have seen it. I looked a certain distance; as you drive along you look a certain distance, so I could make my crossing. I did not see plaintiff's car at all until after the collision."
Although there are other details set forth in the testimony and such instances were relevant, none alone nor all of them together are so controlling as to overcome the competent evidence which sustains the findings of the jury.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in plaintiff's favor upon the verdict.