Summary
In Sauk County v. Schmitz, 12 Wis.2d 382, 107 N.W.2d 456 (1961), the defendant was charged in a forfeiture action with violating a county ordinance restricting the speed of motor vehicles.
Summary of this case from State v. PetersonOpinion
January 9, 1961 —
February 7, 1961.
APPEAL from a judgment of the county court of Sauk county: ROBERT H. GOLLMAR, Judge. Affirmed.
For the appellant there was a brief by Hill, Miller Quale of Baraboo, and oral argument by James H. Hill, Jr.
For the respondent there was a brief and oral argument by James R. Seering, district attorney.
This action for forfeiture was begun by Sauk county in justice court on December 10, 1958, by affidavit and warrant charging violation of sec. 346.57 (2) of the traffic ordinance of Sauk county (identical to sec. 346.57 (2), Stats.), which prohibits operating a motor vehicle at a speed greater than reasonable and prudent under the conditions, and having regard for the actual and potential hazards then existing. Upon defendant's request, the case was transferred to county court.
It appears from the evidence that at 8:40 a.m. on December 10, 1958. defendant was driving north on Highway 12, a two-lane, paved highway with gravel shoulders. It was cold, but the pavement was clear. The speed limit was 65 miles per hour, and defendant was traveling 55 to 60 miles per hour. He was following an unidentified car traveling about the same speed with about 200 feet between them. They had reached the crest of a hill.
A Mrs. Shepard, having come from the west on a side road, drove onto Highway 12, and turned north in front of the unidentified car. She was moving slowly, not yet in high gear, and the unidentified car overtook and passed her on her left.
Defendant testified:
"Well, just as I reached the crest of the hill all I saw was the car ahead of me. Just about that time this car ahead of me turned out and passed Mrs. Shepard's car. . . This was the first time I saw Mrs. Shepard's car. Well, I assumed here is another car and I took my foot off the accelerator until I knew what was what, and I realized after a few seconds I was gaining on Mrs. Shepard's car pretty fast. . . . I had to do something. . . . I didn't think it would be wise to pass to the left. I didn't know if the left lane was clear. The other car that had passed was still out there. I thought the best thing would be to pull off to the shoulder. . . . Yes, I had my foot off the accelerator. I tried to apply the brakes. I realized the shoulder was frozen hard, the gravel on the shoulder was like ball bearings, if I applied the brakes too hard I would lose complete control of the car, didn't know where I would end up. . . . Of course the shoulder appeared wider than it actually was. I got my right front wheel over that edge. It started to pull me into the ditch."
About this time, he said he approached a driveway entrance, turned to the left to avoid hitting it, and landed back on the pavement. At that point, his left rear fender collided with Mrs. Shepard's right front fender. There was testimony by an officer that by observing the tracks, he concluded that defendant was off the traveled portion of the highway for a few feet less than 338. Defendant testified that he was going about 25 miles per hour at the time of impact. There was testimony that he told the officer after the accident that he was going about 40 miles per hour at that time.
There was testimony that he said right after the accident that he was at fault. He testified that he had not estimated Mrs. Shepard's speed correctly when he first saw her and while he was still on the pavement behind her —
"No, I didn't really clamp down on the brakes, I didn't think it was necessary. Of course had I known or realized Mrs. Shepard's speed, I probably could have and stopped."
Trial was before the court, and at the conclusion of it, the court stated that he did not follow the district attorney's argument that defendant should have slowed down coming up the hill; that the offense of driving too fast for the conditions and hazards had not been proved, but that it was established that defendant violated sec. 346.07 (2), Stats., requiring that an overtaking operator pass to the left. The court stated that he found the defendant guilty of the violation of the latter section. Defendant's counsel objected to the finding of a violation of the latter section, and the court accepted briefs. Thereafter the court filed a written decision, concluding that it was proper for the court to amend the pleadings, found the defendant guilty of violating sec. 346.07 (2), and imposed a fine of $10 and costs. From judgment entered February 2, 1960, defendant appealed.
This is a civil action to recover a forfeiture. Although begun by affidavit and warrant before a justice of the peace, the county court was required, after transfer, to proceed under the act granting that court civil jurisdiction and not as a justice court.
Sec. 288.10, Stats.
Sec. 281-13, 44 W. S. A.p. 378; ch. 182, Laws of 1951.
Sec. 269.44, Stats., is applicable to civil actions in courts of record, and provides:
"AMENDMENTS OF PROCESSES, PLEADINGS, AND PROCEEDINGS. The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding, nothwithstanding [sic] it may change the action from one at law to one in equity, or from one on contract to one in tort, or vice versa; provided, the amended pleading states a cause of action arising out of the contract, transaction, or occurrence or is connected with the subject of the action upon which the original pleading is based."
This court has held that sec. 269.44, Stats., allows amendments in civil actions like the present one in which a forfeiture is sought for violation of a municipal or county ordinance.
Neenah v. Krueger (1932), 206 Wis. 473, 240 N.W. 402.
We gather from the record and the county court's comments that defendant's admitted speed of 55 to 60 miles per hour before Mrs. Shepard's car became apparent was a reasonable speed; that the county court was of the opinion that if defendant failed to apply his brakes soon enough to stay safely behind Mrs. Shepard, such failure to reduce speed was momentary and not a violation of sec. 346.57 (2), Stats., as charged; that any emergency with which defendant was confronted was at least in part the result of his own delay in reducing his speed, and that the only lawful courses under the circumstances were either to stay behind Mrs. Shepard, or pass to the left. If failure to apply his brakes put him in a situation where he was forced to pass to the right to avoid a collision, he could not claim that he was excused or justified in doing so. The trial court appears to have believed also that the defendant could safely have passed to the left.
Note, however, the second sentence of sec. 346.57 (2), Stats., not included in the charge in the original affidavit, as follows: "The speed of a vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and using due care."
The original charge, while it did not specify a violation of the ordinance requiring passing to the left, did compel inquiry into the defendant's speed, and all the circumstances and results thereof which might lead to a determination that it was unreasonable or hazardous. At the trial, there was full examination of the circumstances, and the defendant appears to have given all the explanation he had. The county court said it could not conceive of any additional facts that could change the picture, and none occur to us.
When the court reached the conclusion that the violation proved was different from the violation charged, it could have foreclosed all question by offering defendant the opportunity to present additional evidence. The defendant did not request such opportunity, however, and we do not consider that the court abused its discretion.
By the Court. — Judgment affirmed.