Opinion
October 6, 1941 —
November 4, 1941.
APPEAL from a judgment of the circuit court for Shawano county: HENRY GRAASS, Circuit Judge, Presiding. Reversed.
For the appellant there was a brief by Fischer, Brunner Strossenreuther, attorneys, and Eberlein Eberlein of counsel, all of Shawano, and oral argument by L. J. Brunner and M. G. Eberlein.
For the respondents there was a brief by Genrich Genrich, attorneys, and Herbert L. Terwilliger, James A. Fitzpatrick, and William J. Hoffmann of counsel, all of Wausau, and oral argument by Mr. Fred W. Genrich, Jr., and Mr. Terwilliger.
Action commenced January 6, 1939, by Harold Volland against William McGee and his insurance carrier, the Saint Paul-Mercury Indemnity Company, for damages resulting from an automobile collision. The defendant McGee interposed a counterclaim against plaintiff and cross-complained against the interpleaded defendant, the American Automobile Insurance Company. The judgment dismissed the action and all claims. Plaintiff appeals.
The collision occurred early in the morning of December 13, 1938, on Highway No. 47. Plaintiff was driving south and defendant north. The two cars collided in the west lane of travel of the road on the inside of a curve where the highway which runs in a general north and south direction curves toward the northwest. The weather conditions were favorable, but the roadway was icy and there was a slight downward slope toward the north on the curve. The highway was banked somewhat so as to be lower on the west side. The plaintiff was thus traveling up a slight grade as he approached the point of collision. Defendant's car turned crosswise of the road facing west and was struck on its right side by the front of plaintiff's automobile.
Defendant testified that he turned his car into the west lane because he thought plaintiff was on the wrong side of the road and that he turned to avoid what he thought would be a head-on collision. The evidence showed that defendant was on his side of the road until but fifty feet from the point of the accident, and that he suddenly swung over to his left in front of the plaintiff. Skid marks extended in an arc from the east side of the highway over to the point on the west side where the collision took place. The plaintiff's version is that he applied his brakes as soon as he saw the defendant crosswise in front of him, but that he was unable to stop before running into defendant's car.
A trial was had to the court and jury. A special verdict was rendered in which the findings are that plaintiff was guilty of negligence as to speed, and that such speed was a natural cause of the accident; that defendant was negligent in operating his automobile on the left side of the highway, and that such negligence was a natural cause of the accident. The negligence of each party was assessed at fifty per cent. Judgment was entered on December 28, 1939, dismissing plaintiff's complaint and defendant's counterclaim and cross complaint.
After judgment of dismissal had been ordered by the circuit court a motion by appellant to set aside the judgment and for a new trial was granted below. That order was not effective as the trial court could not set aside the verdict and grant a new trial after sixty days had elapsed from the rendering of the verdict, no extension of time for cause having been granted. This is a fixed rule provided by sec. 270.49 (1), Stats. On appeal from that order the matter was considered by this court in Volland v. McGee, 236 Wis. 358, 294 N.W. 497, 295 N.W. 635, and another question of practice was raised in 238 Wis. 227, 298 N.W. 602. The case is now before us on appeal from the judgment of December 28, 1939. Appellant assigns as error instructions to the jury with relation to the speed at which he should have been traveling. He also claims to be entitled to judgment notwithstanding the verdict; and to a change of answers of the special verdict and for judgment on the verdict as so amended. So one question presented is whether appellant's case was properly placed before the jury. This depends upon the correctness of the court's instructions as to appellant's duty with respect to the speed of his car at the time of the collision. The jury was told that appellant was negligent if his speed at the time exceeded twenty miles per hour. The facts in evidence to which the instruction related did not require or warrant such a charge. The instruction as given was well calculated to carry the impression to the jury that under the applicable law appellant's speed was excessive and was a proximate cause of the collision. Appellant appears to have been driving in his proper lane of travel and his speed was not limited beyond the rule of due care set out in sec. 85.40 (1), Stats. 1937. But the jury was told that the accident happened in a residential district and that "a maximum permissible speed on any highway in a residential district shall be twenty miles an hour . . . and therefore if you find just prior to the accident that . . . Harold Volland was driving his car at a speed of more than twenty miles an hour, then you must answer such subdivisions [relating to negligence as to speed] as to such driver yes." Volland had testified to his driving at twenty-five or thirty miles per hour. This charge as to speed practically compelled the jury to find appellant negligent with relation to speed. Although the accident occurred in the unincorporated village of Keshena, it did not occur in a residential district as defined by sec. 85.10 (29), and interpreted in McGill v. Baumgart, 233 Wis. 86, 288 N.W. 799. That case held that a mathematical summation of the frontage, meaning space in front of buildings only without regard to the surrounding grounds, must' amount to more than fifty per cent before the area is residential within the meaning of the statute. The facts of this case do not fall within that requirement, so the instruction that the scene of the accident was a residential area was erroneous. That it was prejudicial cannot be questioned since the instruction related to an element of negligence of which appellant was found guilty.
The record shows that the learned trial judge reached the conclusion his instructions had been erroneous when motions were later made to review the ruling that the collision occurred in a residential district. In a memorandum opinion granting a new trial the lower court said: "It now seems certain to the court that it was in error when it held it a residential district. In McGill v. Baumgart, in interpreting the statute with respect to `residence district,' our supreme court held that the frontage for three hundred feet had to be `mainly' occupied by dwellings, or dwellings and business buildings, and that meant over fifty per cent of the frontage had to be so occupied. The trial court interpreted the residence statute to mean, `the buildings, and its yard or appurtenances,' had to occupy more than one half of the three hundred feet."
As to the question of whether appellant is entitled to have the jury's answers to certain questions changed as a matter of law or whether a new trial should be granted, it is considered that the testimony lacks the quality of certainty which would enable a court to say as a matter of law that the appellant immediately before the accident was not in a position to avoid the accident. There is evidence in the form of estimates of the distance appellant was from the scene of collision when he first noticed that respondent's car was moving broadside in his direction on the west side of the road. Respondent's testimony creates a conflict in the evidence and raises a jury question as to the negligence, if any, of appellant.
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.