Opinion
June 2, 1964 —
June 30, 1964.
APPEAL from a judgment of the county court of Milwaukee County: WILLIAM R. MOSER, Judge. Affirmed.
For the appellant there was a brief and oral argument by Aaron Belongia of Milwaukee.
For the respondent there was a brief and oral argument by Alan Shafrin of Milwaukee.
On April 3, 1962, at 2 p.m., Edward J. Maher, traveling south on Twenty-Seventh street in Milwaukee, came to the intersection of Twenty-Seventh and Wells, an intersection controlled by signal lights, and stopped for a red light. When the light turned green he proceeded across the intersection, moving in the west lane of traffic for southbound vehicles. When he had crossed the center line of the intersection, and the front of his vehicle touched the south edge of the intersection, the right rear fender of his automobile was struck by a vehicle (driven by Marvin E. Kollross) moving in an easterly direction on Wells against a red light signal. On impact, Maher's vehicle was first pushed to the left. It then swung back, passed out of the intersection and struck a legally parked car located south of the intersection on the west side of Twenty-Seventh street.
When the light first turned green in Maher's favor, he looked to his right and observed Kollross about a half a block from the intersection. At the time he made no judgment as to Kollross' speed. Uncontroverted testimony established that, in fact, Kollross was traveling 25 miles per hour from the middle of the block preceding the intersection to the point of impact. As Maher proceeded through the intersection he made no further observation to his right until the instant before impact.
At the scene of the accident, Kollross stated that his brakes had failed when he applied them in response to the red light. The investigating police officer testified that immediately after the accident he tested Kollross' brakes and found that they did not function properly. He further testified that the brake malfunctioning was of long standing.
In March, 1963, Hardware Dealers Mutual Fire Insurance Company (hereinafter "Hardware"), the collision insurer of the parked vehicle, commenced an action under a subrogation clause against Kollross, and Home Mutual Insurance Company (hereinafter "Home"), Maher's liability insurer. After a trial to the court, the court concluded that Kollross was causally negligent and Maher was not negligent to any degree. The court entered judgment on behalf of Hardware against Kollross for the amount Hardware paid to its collision insured, $1,205.20. (Kollross, who was uninsured, did not answer or appear personally in the action although served with proper notice. He could not be located at the time of trial.) The court dismissed Hardware's complaint against Home, and entered judgment on behalf of Home against Hardware for costs and disbursements.
Hardware appeals from that portion of the judgment dismissing its complaint against Home.
The one issue presented on this appeal is as follows: Under the circumstances of this case, was Maher causally negligent as a matter of law with respect to lookout in that he failed to estimate Kollross' speed as he (Maher) entered the intersection and/or he failed to make additional observations of Kollross' vehicle as he traveled through the intersection?
A driver who is entering an intersection controlled by signal lights with the light in his favor has a duty to observe traffic to either side of him, to determine whether or not a car approaching the intersection, and likely to enter the intersection at the moment the observer arrives, will fail to yield the right-of-way.
Ide v. Wamser (1964), 22 Wis.2d 325, 126 N.W.2d 59; Oelke v. Earle (1956), 271 Wis. 479, 74 N.W.2d 336; Wilson v. Koch (1942), 241 Wis. 594, 6 N.W.2d 659.
This duty of observation carries the corollary requirement of making an accurate estimate of the approaching vehicles' distance and speed so that the observer may determine that given a certain distance and speed, an approaching car will necessarily run the light even if the driver applies his brakes at that moment. The driver enjoying the right-of-way must then take the necessary steps to avoid a collision.
Plog v. Zolper (1957), 1 Wis.2d 517, 85 N.W.2d 492.
In the case at bar Maher's observation, when he first saw the Kollross car approaching from the right, was not adequate to make the relevant judgment, i.e., whether Kollross' speed and distance from the intersection were such that he would in all probability fail to yield the right-of-way, even if Kollross applied his brakes at that moment. But even assuming Maher was negligent as to lookout as he entered the intersection, it is clear that this negligent conduct was not causal. In fact, Kollross was driving 25 miles per hour from the middle of the block until the collision in the southwest quadrant of the intersection. Had Maher properly estimated Kollross' speed, he could have reasonably assumed that at that distance and speed, Kollross could yield the right-of-way if he responded to the red light. Further, Maher, after the initial observation, could reasonably assume that Kollross would respect the rules of the road and yield to the red light. The collision was actually caused by the failure of Kollross' defective brakes at the entrance of the intersection. Thus, Maher's negligence as to lookout, if any, was not a cause, in fact, of the accident.
Hardware contends that Maher had a duty to continue making observations to either side as he passed through the intersection. Had he done so, he would have been able to observe Kollross penetrating the intersection against the red light. He then could have accelerated slightly, and avoided the collision.
A driver passing through an intersection controlled by signal lights, with the green light in his favor, need not make continuing observations to either side, after making an initial observation and determination that a car approaching from the side was traveling at such speed and was at such a distance from the intersection that the driver could, as a matter of physical fact, yield the right-of-way if he responded to the red light. This rule was pronounced by the court in Wilson v. Koch, supra. In that case the defendant truck driver, moving in an easterly direction, approached an intersection controlled by signal lights. He stopped for a red light. When the light turned green, he looked to the north and observed a car at a distance and speed such that the driver could have yielded had he responded to the red light facing him. The defendant moved into the intersection as the car, moving from the north, ran the light and a collision occurred in the center of the intersection. The court held on these facts that the driver was not negligent as to lookout as a matter of law. After making the initial observation and determining that the vehicle approaching against the light could be stopped if the driver responded to the light, a driver, moving with the green light in his favor could proceed across the intersection without making further observation to either side. He could rely upon his right of way pursuant to the terms of sec. 346.37, Stats.
Sec. 346.37, Stats. Wilson v. Koch, supra.
In the instant case, Maher had no duty of continuing observation, once he had made an efficient observation upon entering the intersection. The fact that Maher did not make such observation has no relevance here, because, as noted, such failure was not the cause in fact of the particular accident. He could proceed across the intersection relying upon Kollross stopping at the red light.
Oelke v. Earle, supra, relied upon by Hardware, is distinguishable. In that case, a driver (Maxfield) moving with a green light was held to have been causally negligent with respect to lookout for moving into an intersection with a green light (after approaching from a substantial distance with the light in his favor), when his ability to make an efficient observation to one side was impaired by a physical obstruction at such intersection. The competing car which ran the light had entered the intersection before his arrival, In effect, Maxfield was negligent with respect to his initial observation. No such barrier was present here, nor had Maher traveled a considerable distance with the light in his favor before entering the intersection. Moreover, Maher had nearly cleared the intersection before Kollross arrived.
By the Court. — Judgment affirmed.