Opinion
November 8, 1951 —
December 4, 1951.
APPEALS from judgments of the circuit court for Waupaca county: HERBERT A. BUNDE, Circuit Judge. Affirmed.
For the appellants there was a brief by Sigman Sigman of Appleton, and oral argument by Abe Sigman.
Harry P. Hoeffel of Appleton, for the respondents.
These are three identical actions to recover damages for personal injuries brought by passengers in the automobile of defendant Ronald Knorr at the time it was struck by an automobile driven by defendant Greutzmacher, June 1, 1950. Just previous to the collision the Knorr car was being driven north on a black-top public highway. The black-top was twenty feet wide and had dirt shoulders. The Greutzmacher automobile was being driven south and the collision occurred when Knorr turned to the west across Greutzmacher's path intending to enter a farm driveway. The accident occurred at night, on the black-top at the point where the driveway joined the highway. Except for the darkness, driving conditions were good. The jury found that Knorr was causally negligent in operating his automobile in a manner likely to endanger the lives and property of other lawful users of the highway and in failing to maintain a proper lookout. It was admitted, and the court found, that he was causally negligent in failing to signal his intention to turn left into a private driveway. The jury found, further, that Greutzmacher was not negligent as to lookout or speed. He did nothing whatever to avoid the accident and the jury found he was causally negligent in failure to keep his automobile under proper control. The trial court changed the answer to the latter question from "Yes" to "No," which freed Greutzmacher from all negligence and entered judgment dismissing the complaint as to Greutzmacher and granting judgment in favor of the plaintiffs against Knorr. The jury had apportioned negligence eighty-five per cent to Knorr and fifteen per cent to Greutzmacher. The plaintiffs have appealed. Their contention is that there was evidence to support the finding of the jury that Greutzmacher was causally negligent in the control of his automobile and it was error for the court to change the jury's answer.
The testimony most favorable to plaintiffs' contention is that which gives the longest time for Greutzmacher to react to the situation caused by Knorr turning into his path. Such testimony puts Knorr's distance south of the driveway at forty feet when he turned to go into the driveway. He maintained a speed of fifteen miles per hour. The collision occurred at the driveway. Plaintiffs' selection of evidence which the jury might believe also recites that Knorr, at a speed of fifteen miles per hour, was slowly angling over the west half and invading the left lane while still thirty-five or forty feet south of the driveway. Knorr's elapsed time at this speed for the distance to the point of collision is two seconds. There is evidence which will support a shorter interval but we find none that supports a longer one. Greutzmacher testified that he had no chance to do anything to avoid the collision. The trial court considered he was confronted by an emergency and relied upon Hoehne v. Mittelstadt (1948), 252 Wis. 170, 173, 31 N.W.2d 150, in which we held: ". . . the emergency rule when properly applied must likewise excuse inaction on the part of the innocent driver in his proper lane of traffic when suddenly confronted with an automobile on the wrong side of the road." In that case the defendant had two and one-half seconds under conditions of poor visibility in which to take measures to avoid the collision. Without holding that two and one-half seconds is the maximum permitted a defendant-driver to profit by the emergency rule, the present collision is well within even those limits.
Appellants submit that there is evidence from which the jury could believe that Greutzmacher was two hundred feet north of the driveway when Knorr, forty feet south of it, turned toward it, and thus Greutzmacher had sufficient space to avoid the collision if he controlled his car properly. It would require a speed of some sixty-eight miles per hour for Greutzmacher to go two hundred feet in two seconds. The legal limit at that time and place was fifty-five miles per hour, sec. 85.40(1) (g), Stats., and the jury found that Greutzmacher was not negligent as to speed. At any rate, we do not consider the element of distance is material, given the other facts which are present here. The decisive consideration in our view is that by appellants' own figures there were only two seconds after Knorr turned into Greutzmacher's half of the road in which Greutzmacher could decide what, if anything, he had better do, and to do it. We conclude that the learned trial court correctly determined that, as a matter of law, an emergency was presented in which Greutzmacher could not be held responsible for the results of any action which either he might take or might fail to take to avoid collision.
By the Court. — Judgments affirmed.