Opinion
February 5, 1959 —
March 3, 1959.
APPEAL from a judgment of the circuit court for Manitowoc county: F. H. SCHLICHTING, Circuit Judge. Reversed.
For the appellants there was a brief by Holden Schlosser of Sheboygan, and oral argument by Wayne W. Schlosser.
For respondents Tomchek there was a brief and oral argument by Dudley O. Emmert of Manitowoc.
For the respondents Adolph Shimon and Farmers Mutual Automobile Insurance Company there was a brief by Clark, Rankin, Nash, Emmerling Spindler of Manitowoc, and oral argument by John P. Nash.
Action commenced by plaintiffs David Tomchek, a minor, by John E. Huberty, his guardian ad litem, and Martin S. Tomchek against defendants Mutual Automobile Insurance Company of Wisconsin, David Balkansky, Adolph Shimon, and Farmers Mutual Automobile Insurance Company, for injuries sustained when an automobile driven by Balkansky, in which David Tomchek was a guest, collided with the automobile of Adolph Shimon. The case was tried before a jury, which returned a special verdict finding Balkansky causally negligent in five respects and Shimon not negligent, and finding that David Tomchek assumed the risk of his injuries from Balkansky's negligence in all five respects. On motions after verdict the trial court changed the answers of the jury on the question of assumption of risk as to three of the subdivisions thereof from "Yes" to "No," and entered judgment for the plaintiffs upon the verdict as so changed against the defendant Balkansky and his insurer, Mutual Automobile Insurance Company of Wisconsin. From that judgment Balkansky and his insurance company appeal.
The accident occurred on May 8, 1955, at about four o'clock in the afternoon at the intersection of two County Trunk Highways, D and Q, in Manitowoc county. Highway Q is a north-south road and a nonarterial. Highway D is an east-west arterial road. The highways were dry. Both are black-top, D 23 feet wide and Q 17 feet wide. There is a cheese factory on the northwest corner of the intersection, the southeast corner of the building being 28.5 feet from the north edge of D and 34.5 feet from the west edge of Q. There is a stop sign governing traffic going south on Q, located 121.5 feet north of the center of the intersection and 13 feet west of the edge of the black-top of Q.
Balkansky, aged eighteen years, was driving a 1953 Ford convertible with top down in a southerly direction on Q. With him were David Tomchek, seated in the front seat on the outside, and a girl friend seated between them.
Shimon was driving a 1952 Chevrolet east on Highway D. His wife was seated in the right front with a child on her lap; three of their children were in the rear seat.
The cars collided in the center of the intersection and Tomchek was injured.
May 8, 1955, was a Sunday. Balkansky testified that he and his friends were just "cruising around" and that he had never traveled on Q before. He testified that his speed at a point 1,000 feet north of the intersection was 45 to 55 miles per hour; that he "had to pass a car somewhere slightly up the road." When he was about 250 yards from the intersection he saw a junction sign, whereupon he took his foot off the gas pedal and rested it lightly on the brake. He did not see the Shimon car from any point north of the cheese factory, although he testified there was no obstruction across the field southwest toward D for a distance of 500 feet. He testified that he first saw the Shimon car after passing the cheese factory, at which time both cars were 30 to 35 feet from the intersection and both were traveling 30 or 35 miles per hour. He saw no stop sign, although he testified he looked for one after having seen the junction sign.
A traffic officer testified that there were skid marks running north and south located north of the intersection on Q.
La Verne Lesperance testified that just prior to the collision she was riding in a car being driven by her husband in a southerly direction on Q at about 50 miles per hour. About a block and a half to two blocks north of the intersection their car was passed by the Balkansky car at a speed of at least 70 to 75 miles per hour; that they saw the convertible fly through the air as they were stopping for the stop sign. She also testified that as the Balkansky car passed them the occupants turned around and made a remark which they "couldn't catch." She testified that Balkansky never slowed down for the intersection. The cars collided when the Lesperance car was about a quarter block away. Mrs. Lesperance's husband testified he observed the same things that his wife did and estimated the speed of the Balkansky car as it passed at about 75 miles per hour.
Tomchek testified that he did not see either the junction sign or the stop sign prior to the collision; that he was conversing with the occupants of the car and, due to the fact that he does not hear in his left ear, was probably facing to the left. He could not testify as to how the accident happened, except that he saw a "black flash," covered his face with his hand and the next thing he knew he was picking himself off the ground and he heard Balkansky saying "I am sorry." He testified he thought Balkansky was driving about 50 miles per hour just before the collision, although the speed may have been 60, but he doubted it was 70 miles per hour. Tomchek had ridden with Balkansky on many occasions before the accident and considered him a careful driver; at the time in question he felt that Balkansky was driving all right. He remembered passing a car shortly before the collision, but he did not know they were approaching an intersection. After the accident, he testified, "there was all sorts of people around saying we were driving like crazy and other various comments."
Shimon testified he was traveling east on Highway D at a speed of 30 or 35 miles per hour. He was acquainted with the roads, knew he was approaching the intersection with Q, knew that Highway D was an arterial and that there was a stop sign for traffic on Q. He saw the Balkansky car when it was north of the cheese factory, about 750 feet from the intersection. Shimon was then about 250 feet west of the intersection. He testified that Balkansky was traveling fast, possibly 65 to 75 miles per hour, but since he had just a glimpse he could not estimate the speed. His wife, also observing the Balkansky car, said, "I don't think he will stop." Shimon took his foot off the accelerator. He testified that at that distance he could not tell whether Balkansky was going to stop. When he was 30 to 35 feet from the center of the intersection and traveling an estimated 25 miles per hour he saw the Balkansky car coming past the cheese factory and knew a collision was imminent; he did not apply his brakes because there was no time.
In the special verdict there were submitted to the jury questions on Balkansky's negligence with respect to lookout, control and management, speed, and failure to yield right of way. A question on arterial stop was answered "Yes" by the court. The jury answered all such questions "Yes." It also found each of the five items of Balkansky's negligence causal. Questions regarding Shimon's negligence as to lookout, control and management, and speed were all answered "No" by the jury. A question as to whether David Tomchek was negligent for his own safety as to lookout was answered "Yes" by the jury but it found that such negligence was not a cause of his injuries. In answering question 9 the jury found David Tomchek assumed the risk of his injuries from the negligence of Balkansky in all five respects.
On motions after verdict the trial court changed the answers to three of the subdivisions of question 9 to find that Tomchek did not assume the risk with respect to Balkansky's negligent lookout, arterial stop, and failure to yield the right of way. Judgment was entered on the verdict as so changed.
Appellants contend that the trial court erred in changing the answers of the jury in three subdivisions of question 9, and we agree.
David Tomchek testified he had ridden with Balkansky many times; that he considered him a good driver and felt that he was driving all right at the time of the accident.
Respondents agree that the evidence is clear as to the causal negligence of Balkansky in all respects found by the jury. As to speed, it was the testimony of the two disinterested witnesses, Mr. and Mrs. Lesperance, who made their estimates on the basis of their own speed of 50 miles per hour, that Balkansky was traveling at 70 or 75 miles per hour as he passed them some 450 to 600 feet from the intersection, and that he never slowed down for the intersection.
In Bronk v. Mijal (1957), 275 Wis. 194, 81 N.W.2d 481, this court considered the question whether — in a case where speed plays an overpowering part in causing the accident and the guest has assumed the risk as to such speed, and there is also a finding of causal negligence as to lookout — it may be held as a matter of law that the guest also assumed the risk as to lookout. In that case (p. 201) we referred to Young v. Nunn, Bush Weldon Shoe Co. (1933), 212 Wis. 403, 410, 249 N.W. 278, where it was said:
"If a host is proceeding at a negligent rate of speed, which the guest assumes, and by reason of this speed finds himself in a situation requiring instant decision and giving him opportunity for further negligence with respect to control, it is impossible to isolate the subsequent negligence from the prior negligence and to hold, in spite of the fact that the guest has acquiesced in the former, that the momentary character of the latter makes acquiescence impossible. In such a situation, where the emergency itself is produced by negligence of the host, the guest who has assumed the risk of such negligence must be held to assume the risk involved in the emergency produced by it."
In the Bronk Case, supra, this court stated that it could not hold as a matter of law that there was assumption of risk as to lookout. It observed, however (p. 202):
"It is possible to assume a hypothetical state of facts where the speed of an automobile might be so great that the driver could not read highway safety signs, such as the curve warning sign in the instant case. In such a situation a guest who assumed the negligent speed ought to be held to have assumed the negligence of his host in not seeing such a highway safety sign. However, we certainly cannot make such a determination as a matter of law under the facts here presented. For example, there was no evidence presented that the curve warning sign could not have been seen and read by the ordinary operator of a car proceeding at a speed of 75 miles per hour."
In this case, of course, we have a finding by the jury that Tomchek assumed the risk with respect to negligent lookout, as well as all other aspects of Balkansky's negligence. He had his head turned to the left, away from any warning sign that may have been on the roadside. Where the best evidence was that Balkansky was traveling at a speed of 70 or 75 miles per hour as he approached the intersection, the jury was entitled to conclude that speed was the element which occasioned all the other items of negligence, and that since Tomchek acquiesced as to speed he assumed the risk of all.
It is true that negligent lookout is ordinarily a momentary failure which the guest does not assume. Negligence as to management and control, likewise, is usually of a momentary character, as in Peterson v. Magnus (1956), 272 Wis. 461, 76 N.W.2d 289. In that case this court held that where there is such excessive speed as might well be the sole cause of the accident, a finding of assumption of risk incident to momentary negligence as to management and control cannot be considered independently of the finding as to speed. The court observed that it was the defendant's speed which placed him in a position where proper control of his car was almost impossible.
We consider that the reasoning of that case is just as applicable to the matter of assumption of risk as to lookout under circumstances where speed is so great as to have an overpowering effect on the driver's ability to exercise ordinary care. In the instant case the jury could well believe that it was Balkansky's speed which made it almost impossible for him to maintain a proper lookout. Having seen the junction sign, Balkansky testified, he looked for a stop sign but did not see one. His failure to see the stop sign could logically be attributed to the fact that his speed and his passing of the Lesperance car placed him in the position of being unable to see it. Moreover, there is the testimony of the Lesperances that as the Balkansky car passed them the occupants looked backward. All this, at a speed of 70 or 75 miles an hour on a road 17 feet wide, Tomchek felt was "good driving." Certainly the circumstances justified the conclusion of the jury that Tomchek assumed the risk with respect to lookout as well as speed. The same view must be taken of the jury's findings of assumption of risk as to failure to stop for the arterial and failure to yield the right of way. It was entitled to infer that they were essentially attributable to the basic element of Balkansky's negligence, speed. If it was his speed, probably coupled with his passing of the Lesperance car, that made it impossible for him to see the stop sign, it was also his speed which made it impossible for him to stop and yield the right of way.
Appellants also raise some questions on Shimon's negligence and on evidence affecting the findings on damages, but in view of our decision on the question of assumption of risk it becomes unnecessary to discuss them.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiffs' complaint.