Opinion
March 30, 1964 —
April 28, 1964.
APPEAL from a judgment of the circuit court for Waukesha county: CLAIR H. VOSS, Circuit Judge. Affirmed.
For the appellants there was a brief by Charlton, Yanisch, Binzak Ritchay of Milwaukee, and oral argument by William A. Ritchay.
For the respondents there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Clayton R. Hahn of counsel, all of Milwaukee, and oral argument by Mr. Hahn.
Automobile accident. At approximately 4:30 p.m. on May 18, 1961, plaintiff Sharon Misiewicz was proceeding in a westerly direction on Highway 190, also known as Capitol drive, in the city of Brookfield, Waukesha county. She prepared to turn left from Capitol drive onto Pilgrim road, County Trunk Highway YY. Her preparation consisted of turning on her left directional signal and bringing her car to a stop for a short period of time.
Defendant Brian Waters was proceeding in an easterly direction on Capitol drive, traveling within the posted speed limit (50 miles per hour). Although he was familiar with the intersection he did not slacken his speed as he approached. Defendant had an unobstructed view of the intersection for approximately 1,300 feet. He testified that he saw several cars in a line approaching from the opposite direction but that he did not become specifically aware of the plaintiff's car until he was from 200 to 300 feet away from it, and that he did not know that plaintiff was going to make a left turn until he was 150 feet away.
The two cars collided. There is a dispute concerning whether the point of impact was in plaintiff's lane or defendant's. There were skid marks on the highway, left there by defendant's vehicle, of 105 feet west and 33 feet east of the impact, but the record is not conclusive as to exactly where they were in reference to the center line. There was considerable damage to the right front of the plaintiff's vehicle.
The plaintiff testified that she was stopped in her own westbound lane at or very near the intersection, with directional signal on preparatory to making a left turn, and that the defendant crossed over the center line and struck her vehicle while it was in such position. An eyewitness who passed her on the right at about the time of impact stated that when he started to pass her vehicle she was stopped in the position she described and that he did not believe she was over the center line at the time of impact.
The defendant testified that he at no time invaded the westbound lane, that plaintiff suddenly started from her position to make a left turn and invaded his lane of traffic directly in front of him and that he immediately applied his brakes.
Two additional eyewitnesses corroborated the defendant's testimony.
The case was submitted to a jury on an ultimate-fact verdict. In connection with Question One which inquired as to negligence of the defendant, the court specifically instructed the jury as to lookout, speed, management and control, and emergency. Concerning the negligence of the plaintiff the court instructed the jury as to lookout, manner of making a left turn, and duty to yield right-of-way.
After the jury had been out from about 3:30 p. m. until 8 p. m., with time out for dinner, they returned to request additional instructions on the responsibilities of an individual making a left turn and his duty to ascertain that the intersection is clear before making that turn. The trial court repeated his instructions relating to negligence and cause questions in the verdict. He again gave the emergency instruction as part of his instruction on Question One of the verdict. After another hour of deliberation the jury returned a verdict finding both parties causally negligent and apportioning that negligence 60 percent to plaintiff and 40 percent to defendant. From a judgment on the verdict plaintiff appeals.
The issues presented by the parties can be stated in one question. Was it prejudicial error to give the defendant the benefit of the emergency instruction?
The emergency instruction given by the trial court was adopted from the standard instruction appearing in Wis J I — Civil, Part I, 1015:
"I would further instruct you in connection with Question One that drivers of motor vehicles who are suddenly confronted by an emergency, not brought about or contributed to by their own negligence, and who are compelled to act instantly to avoid collision or injury, are not guilty of negligence if they make such choice of action or inaction as an ordinarily prudent person might make, if placed in the same position, even though it should afterwards appear not to have been the best or safest course. You will bear in mind, however, that the rule just stated does not apply to any person whose negligence wholly or in part created the emergency. One is not entitled to the benefit of the emergency rule unless he is without fault in the creation of the emergency."
One of the contentions of the plaintiff is that if the instruction was properly given to the jury it should apply to both drivers and not only to the defendant. This position is based upon the fact that both parties claim the other driver invaded their lane of traffic.
This contention cannot be sustained. The evidence of the plaintiff is that she was properly stopped in a position to make a left turn and that while so stopped the defendant invaded her lane and struck her vehicle. There is nothing in the evidence, nor any claim made by her, that she acted or failed to act in response to a hazard or emergency that suddenly confronted her. The emergency doctrine is designed to excuse conduct, either action or inaction, that might otherwise be negligent, when such conduct is motivated by a sudden emergency and without time for sufficient reflection.
The principal argument advanced by the plaintiff is that the defendant was not entitled to the benefit of the emergency instruction because he was negligent as to lookout as a matter of law. Borowske v. Integrity Mut. Ins. Co. (1963), 20 Wis.2d 93, 121 N.W.2d 287, is cited as authority for this position.
Ordinarily the application of the emergency rule is for the jury. Thorp v. Landsaw (1948), 254 Wis. 1, 7, 35 N.W.2d 307, and cases therein cited. The Borowske Case does hold that it is error to give a driver the benefit of the instruction where such driver is negligent as to lookout as a matter of law. We cannot hold as a matter of law, under the facts of this case, that the defendant was negligent as to lookout. The defendant had a view of the oncoming traffic when he was 1,300 feet from the intersection. He testified that from this position he did see a line of several cars approaching him from the opposite direction, that he did not specifically see the plaintiff's car until he was 200 to 300 feet from her and that he did not realize she was making a left turn until he was about 150 feet from the position of her car. These facts create a jury issue as to lookout, and distinguish it from the Borowske Case. To give the defendant driver the benefit of the emergency instruction was not error by virtue of the factual dispute presented here.
The jury, after some deliberation, returned for additional instructions as to the rules of the road on making a left turn. In response thereto the trial court repeated all of the instructions as to specific elements of negligence on the part of both drivers including the emergency instruction. The plaintiff claims that to give the emergency instruction twice emphasized the instruction and gave the defendant unfair advantage. The court did not give only the emergency instruction insofar as defendant was concerned but all the instructions as to his possible specific acts of negligence. It is difficult to conclude that this was detrimental to the plaintiff — it may well have been beneficial. In any event the necessity and extent of the additional instructions must rest in the sound discretion of the trial court. There is no showing here of an abuse of such discretion.
There is ample credible evidence to sustain the jury's verdict as to the liability questions submitted to them.
Because of our determination as to the liability issues, no useful purpose is served in discussing the cross issue of excessive damages.
By the Court. — Judgment affirmed.
DIETERICH, J., took no part.