Opinion
November 11, 1942 —
December 8, 1942.
APPEAL from a judgment of the circuit court for Milwaukee county: WM. F. SHAUGHNESSY, Circuit Judge. Reversed.
Thomas E. Torphy of Milwaukee, for the appellants.
N. Paley Phillips of Milwaukee, for the respondent Lester Gibson.
A. W. Richter of Milwaukee, for the respondent Carl Butterfield.
Action commenced November 6, 1940, by Lester Gibson against Percy Streeter, Sr., and American Employers' Insurance Company. On the motion of Streeter, Carl Butterfield was impleaded as a defendant. Streeter in his cross complaint asked for contribution and also for damages for the damage to his car. From judgment for the plaintiff, defendants Streeter and the Insurance Company appeal. The impleaded defendant Butterfield did not appeal but filed a motion for review.
Plaintiff was a passenger in the Butterfield car, sitting on the right side of the rumble seat, on July 18, 1940, as the car traveled west on Highway 19. It is alleged that Butterfield intended to turn left onto Highway F; that when he reached the intersection there was a stream of traffic behind him; that he drove over into a gravel parking place on the north side of the highway and headed his car south; that as the last of the string of cars passed, he started across Highway 19 toward Highway F; that Streeter was driving east on Highway 19; that Butterfield saw Streeter at from two hundred to three hundred feet west of the intersection. Streeter claims he was driving at thirty-five to forty miles per hour, though there is testimony that just prior to the collision he speeded up. Streeter testified that he first saw the Butterfield car when he was thirty-five to fifty feet away from it, at which time he jammed on his brakes, causing the car to skid, and he further testified that he did not turn far to the north, or left, to avoid the collision because of fear of westbound traffic in the north lane of the highway. The right front corner of Streeter's car hit the right rear corner of the Butterfield car. There was some evidence that just before the collision Streeter turned his car to the right, and there is conflict in the evidence as to whether the collision occurred on the south half of the concrete of Highway 19 or farther south on Highway F. Plaintiff sustained severe injuries.
The trial court ruled as a matter of law that Butterfield was guilty of causal negligence with respect to lookout, management and control, and failure to yield the right of way. The jury found Streeter guilty of causal negligence as to speed, lookout, and management and control. The jury acquitted the plaintiff of any negligence and assessed his damages at $7,500. The court ordered judgment for contribution for Streeter against Butterfield. Since the jury found that Streeter's negligence was greater than Butterfield's, Streeter did not recover a judgment against Butterfield for property damage on his cross complaint.
From a judgment on the verdict for Gibson, Streeter appeals, assigning as error the following: (1) The evidence does not support the finding that Streeter was negligent; (2) even if Streeter was negligent, such negligence was not the cause of the accident; (3) the refusal of the trial court to give certain requested instructions to the jury regarding Butterfield's duties under the statutes and Streeter's right to assume that Butterfield would perform the same; (4) improper definitions of negligence; (5) excessive damages.
Under the testimony presented at the trial on behalf of Streeter, he was entitled to have the case judged by a jury acting with the understanding that one driving with ordinary care in his proper lane of travel, having the right of way and continuing to use ordinary care, may rightfully rely on the assumption that this right of way will be respected. This does not excuse the driver with the right of way from maintaining a proper lookout or from using ordinary care in the operation of his car, but in weighing his conduct it is important to remember that he did have the right to assume that anyone emerging from a private driveway would respect his right of way. McCaffery v. Automobile Liability Co. 176 Wis. 230, 186 N.W. 585. Butterfield had brought his car to rest in an area off the highway, and while moving from that place he was bound to yield the right of way "to all vehicles approaching on such highway." Sec. 85.18 (9), (10), Stats.
There is competent testimony that Streeter was proceeding in the exercise of ordinary care with the right of way in his favor; that Butterfield's car came suddenly from where it was parked and invaded Streeter's path when Streeter was so near the point of meeting that stopping was impossible; that the emergency caused by Butterfield's attempted crossing was such as to excuse Streeter from liability for the resulting collision of the two cars. The dangerous condition, according to that testimony, was thus created because of the failure of Butterfield to exercise ordinary care in crossing Highway 19. The instructions as given did not sufficiently cover the matter with relation to Streeter's rights. The jury should have been instructed on Streeter's right to assume that the driver of the Butterfield car, or any other driver emerging from a private driveway, would comply with the rules of the road and yield the right of way. Streeter was entitled to some instructions to the jury on that phase of the case as bearing on the issue of whether he was negligent at all, and also in the comparison of negligence as between Streeter and Butterfield under the cross complaint. This refusal to charge according to the request was prejudicial error, requiring a new trial of the issues. While other errors are urged, we find no further prejudicial error with respect to the court's instructions.
The reversal of this judgment places the entire controversy again before the trial court. The plaintiff has no judgment against Butterfield. As the judgment for Streeter against Butterfield for contribution is dependent on whether plaintiff prevails in securing a judgment against Streeter, there must be a redetermination of that question also. Butterfield has not brought his case here on appeal, but under the decision the foundation of the claim for contribution against him does not presently exist, and the issue as to his obligation to make contribution to Streeter is undetermined, as well as his liability property damage claimed by Streeter. The conflict in the testimony as to the manner of Butterfield's approach from the place where he was stopped, the distance at which he observed Streeter's car, and the speed of the Streeter car, creates a jury question as to Butterfield's negligence.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.