Opinion
February 5, 1959 —
March 3, 1959.
APPEAL from a judgment of the circuit court for Milwaukee county: WM. F. SHAUGHNESSY, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Michael J. Dunn and James J. Bonifas, both of Milwaukee.
For the respondents there was a brief by Kivett Kasdorf, attorneys, and Nonald J. Lewis of counsel, all of Milwaukee, and oral argument by Mr. Lewis.
On October 17, 1956, Mrs. Addie Lampertius brought action against Melanie Chmielewski and her insurer to recover damages for personal injury. The injury resulted from a collision between a car driven by Miss Chmielewski and one driven by Mr. Lampertius in which Mrs. Lampertius was a passenger. Mr. Lampertius and his insurer were made defendants and Miss Chmielewski and her insurer cross-complained against them for contribution.
The collision occurred at 7:45 p. m. on March 7, 1956, at the intersection of West State and North Ninth streets in Milwaukee. The Lampertius car was traveling east. Miss Chmielewski had been driving west and made a left turn across the path of the Lampertius car. The right front of the Lampertius car struck the right front corner and side of the Chmielewski car. There are traffic lights at the intersection. They had been green for east-west traffic, but changed to amber shortly before or just as Lampertius entered the intersection. There was testimony that the streets were slushy and slippery.
It is conceded that Miss Chmielewski's left-turn directional signals were operating as she approached and entered the intersection. Both Mr. and Mrs. Lampertius testified that they saw the signal and also that they saw the traffic light change to amber. The gist of Miss Chmielewski's explanation was that she approached the intersection at about 10 miles per hour, entered the intersection with the green light, stopped her car within the intersection before turning, looked for eastbound cars, saw Lampertius, concluded that he would stop, the light then having changed to amber, and proceeded to make her left turn. Lampertius testified that he knew Miss Chmielewski intended to turn left, but assumed she would let him pass before turning. He was traveling from 20 to 25 miles per hour. His testimony differed from that of Miss Chmielewski as to the speed at which she approached the intersection and as to the manner in which she made her turn.
Mrs. Lampertius was seated directly behind her husband, there being two guests in the car. She saw Miss Chmielewski's car as it left the traffic light on the northeast corner, before it began to turn, and saw the left-turn signal. She did not continue to watch the car, but glanced down to pick up her gloves since they were nearly at their destination. She did not see Miss Chmielewski start to turn and when she looked up, Miss Chmielewski was directly ahead and the collision occurred.
In the special verdict the jury found Miss Chmielewski not negligent in respect to management and control, not negligent in respect to lookout, causally negligent in respect to making a left turn without affording a reasonable opportunity to Lampertius to avoid a collision, not negligent in respect to yielding the right of way, and not negligent in respect to stopping before entering the intersection. The jury found Mr. Lampertius causally negligent in respect to management and control, not negligent in respect to lookout, causally negligent in respect to speed, causally negligent in respect to yielding the right of way, and not negligent in respect to stopping before entering the intersection. The jury found Mrs. Lampertius causally negligent as to lookout. A comparison question was submitted as to the combined negligence of Miss Chmielewski and Mrs. Lampertius (Mr. Lampertius being omitted from the comparison question). The jury attributed 25 per cent to Miss Chmielewski and 75 per cent to Mrs. Lampertius.
On January 31, 1958, the circuit court entered judgment upon the verdict dismissing the complaint and cross complaint. Plaintiff had asserted no claim against her husband and his insurer. It appears of record, however, that after entry of judgment, plaintiff made a settlement with them and gave a release and covenant not to sue, satisfying one half of the total amount of damages caused by the accident.
Mrs. Lampertius appealed from the judgment.
The trial court reluctantly submitted to the jury the questions inquiring whether Mrs. Lampertius was causally negligent in respect to lookout. On motions after verdict, however, the court decided that there was evidence to support the answers to those questions and dismissed the complaint. The court said:
"The plaintiff herself testified that from her position in the rear seat of her husband's automobile she saw the Chmielewski automobile approaching some distance east of the east crosswalk of Ninth street. She further testified that she saw the left-turn signal on the Chmielewski automobile flashing intermittently. No word passed from the plaintiff to the husband driver, and it is significant that the jury found Mr. Lampertius, the husband driver, causally negligent in respect to the speed at which he was driving his automobile just prior to the collision. There is testimony which the jury could have considered to be credible that the street was slippery and that it was snowing; and in view of all of the evidence in the case the court now considers the finding by the jury in respect to the causal negligence of the plaintiff to have been substantiated by evidence which the jury had a right to consider credible.
"It is further considered that in view of the finding of excessive speed on the part of the host-driver, Clarence Lampertius, there was a real duty upon the part of the plaintiff to have warned the husband."
With all respect, however, we are unable to agree.
"In Goehmann v. National Biscuit Co. (1931), 204 Wis. 427, 429, 235 N.W. 792, this court held that it is a general rule that passengers in an automobile must exercise due care for their own safety, and that this requires that they keep a proper lookout to warn the driver of approaching danger. . . . A guest is not held to the same degree of care with respect to lookout that is required of the driver, and one sitting in the rear seat is held to a lesser degree of care than one sitting in the front seat. . . . In almost all instances the issue of the contributory negligence of a guest is for the jury to determine." Vandenack v. Crosby (1957), 275 Wis. 421, 434, 82 N.W.2d 307.
There have been cases, however, where a guest's failure to see did not raise a jury question as to negligence as to lookout. In Puccio v. Mathewson (1951), 260 Wis. 258, 270, 50 N.W.2d 390, this court set aside a jury finding of negligent lookout on the part of a guest who sat in the front seat, looking at and conversing with another guest. In Lewis v. Leiterman (1958), 4 Wis.2d 592, 598, 91 N.W.2d 89, we upheld the refusal of the trial judge to submit questions as to guests' causal negligence as to lookout.
"Guests in an automobile are not required to keep as sharp a lookout as the driver ( Cherney v. Simonis, 220 Wis. 339, 345, 265 N.W. 203), nor to voice warnings of every possible hazard, where there is nothing in the situation or in the previous manner of driving to suggest that the operator of the car may steer into trouble if not warned. Even where the passenger has fallen asleep, his negligence in that respect is not the cause of the accident if, had he been awake and seen the obstacle, he would not have anticipated that the driver would not seasonably turn and avoid it until too late to prevent the collision by action on the passenger's part." Le Mere v. Le Mere, ante, pp. 58, 61, 94 N.W.2d 166.
With these rules in mind, we examine the facts of the instant case: Mrs. Lampertius was seated behind the driver. She saw the Chmielewski car approaching or entering the intersection with its left-turn signal in operation. Did she then have a duty to warn her husband? Did she have a duty to continue to watch it until it began its turn? An affirmative answer would, in the opinion of the majority of the court, impose too great a duty upon a rear-seat passenger under the particular circumstances of this case. The jury found that Mr. Lampertius' lookout was adequate. Even if he had been found negligent in this respect, there is no evidence that she had reason to believe he did not see the Chmielewski car. Had Mrs. Lampertius been watching the Chmielewski car at all times, it would be speculative to say that a warning given after it began to turn would have been in time to be effective.
Several members of the court are of the opinion that there was a jury question as to causal negligence of Mrs. Lampertius; that the answers finding her causally negligent are merely inconsistent with the finding that the driver, who had the greater duty, was not negligent as to lookout ( Stuart v. Winnie (1935), 217 Wis. 298, 303, 258 N.W. 611); and that there should be a new trial. A majority, however, conclude that there was no jury question as to negligence on her part; the answers to the questions on her negligence should be changed and the answers to the comparison question struck out; and judgment should be rendered on the verdict as amended. Because the settlement between plaintiff and Mr. Lampertius and his insurer satisfied one half the liability, the judgment should be against Miss Chmielewski and her insurer for one half the damages. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in favor of plaintiff in accordance with the opinion.