Opinion
November 11, 1942 —
December 8, 1942.
APPEAL from a judgment of the circuit court for Kenosha county: ALFRED L. DRURY, Circuit Judge. Reversed.
L. E. Vaudreuil of Kenosha, for the appellants.
For the respondent Mabel Wilson there was a brief by Nohl, Petrie Blume, attorneys, and Gold McCann of counsel, all of Milwaukee, and oral argument by Henry Blume and Ray T. McCann.
For the respondent Henry C. Koch there was a brief by Thompson, Myers Helm and Wilbershide Baumblatt, all of Racine, and oral argument by Samuel P. Myers.
Action by Mabel Wilson, as administratrix of the estate of Emory A. Wilson, deceased, against Henry C. Koch and others to recover under the death-by-wrongful-act statute, commenced January 8, 1941, for a death sustained in an automobile collision. From a judgment for plaintiff, entered January 21, 1942, the defendants Edward Schmidt, his employer, and his insurer appeal.
The plaintiff administratrix sues under the death-by-wrongful-act statute, sec. 331.04 (2), to recover for the death of her decedent, who was killed in an automobile collision while riding in an automobile driven by the defendant Koch. The suit is against Koch and his insurer, and Edward Schmidt, who was driving a truck as the servant of the City Lumber Supply Company, and the insurer of the Lumber Company. The collision occurred at the intersection of the two main trunk Highways 41 and 43 in Kenosha county. Koch was driving south on Highway 41 and Schmidt easterly on Highway 43 which crosses Highway 41 in a southeasterly direction. Both roads are paved with concrete. The pavement on Highway 43 is forty-eight feet wide. Highway 41 has two lanes, both paved, each twenty-four feet wide, the east lane for north and the west for south traffic, separated by a grassplot twenty feet wide. There is a traffic light at the intersection. Schmidt stopped for the traffic light which was against him, and on its changing in his favor started up. His truck was fully loaded with gravel. Before starting he looked to his left. A southbound car on Highway 41 was then stopping in obedience to the traffic light against it. Koch was a block behind this car traveling fifty-five miles per hour. He passed the stopping car, but did not stop or slacken his speed for the intersection. He neither saw the traffic light nor a warning sign six hundred feet north of the intersection, and did not remember passing the stopping car. There were no obstructions to his view to the southwest. He first saw the truck when the front of it was passing over the west lane. He was then almost to the intersection. He then applied his brakes and turned and kept turning left. Schmidt, the truck driver, testified that he saw the Stopped car slowing up for the light as he started up and saw Koch's car a block to the north. His truck was in low gear. At his right on Highway 41 three cars were stopped for the traffic light. He had practically crossed the west lane of Highway 41 when the collision occurred, the rear of the truck being about two feet west of the west line of the east lane. After starting he did not again look to his left until he heard the squeak of Koch's brakes. The occupant of the southbound stopped car testified that Koch passed him when he was one hundred to one hundred fifty feet from the intersection, and the traffic light was then red and he was stopping for it. The truck was then in the southbound lane crossing slowly. The facts above stated are not in dispute, although Schmidt's testimony is conflicting as to where his truck was when he first saw Koch's car. The jury found that Schmidt failed to use ordinary care in respect to lookout, and that his negligence in this respect was causal, but found that there was no want of ordinary care in respect to management of his truck or obeying the traffic signal. On the verdict so finding, the court entered judgment against him, his employer, and the insurer of the truck. These defendants appealed. Koch was found causally negligent and judgment was entered against him, and for contribution against Schmidt, his employer, and the employer's insurer. Koch and his insurer do not appeal.
The only question at issue on the appeal is whether the jury's finding that the defendant Schmidt was negligent as to lookout is supported by the evidence. The trial judge was of opinion that the finding was sustained. He based his conclusion on the rule that "the right of a driver to proceed on a green light is not absolute." The rule is as stated. Two cases of this court are cited by him as making the rule stated applicable to the instant case. These cases are Teas v. Eisenlord, 215 Wis. 455, 253 N.W. 795, and Meyer v. Neidhoefer Co. 213 Wis. 389, 251 N.W. 237. We consider that the facts involved in these cases clearly distinguish them from the instant case, and that the rule stated does not apply under the undisputed facts here involved. It is true that in the Teas Case, supra, which involved a collision at the instant intersection, the lights were in favor of the driver of an automobile when he started into an intersection and that the jury found him guilty of negligence as to lookout. The statement of facts as to the driver's conduct is very meager in the opinion, but the printed case on file shows that the driver entered the intersection at twenty-five miles per hour with the light in his favor, and that when he passed the light he saw the colliding car when it was about fifteen feet away, and that was the first time he saw it, and it was then within the intersection, and there was nothing in his way to prevent his seeing it. This presents a very different picture from the instant one, where Schmidt was stopped in obedience to a light, and before starting when the light changed in his favor looked both ways, and saw that the traffic on the intersecting road within reasonable distance was either stopped or stopping, and also saw the colliding car coming a block away. The facts in the Meyer Case, supra, as appears from the opinion, are so entirely different as to present no similarity to the instant case.
In the instant case it is plain from undisputed evidence that Schmidt used due care in every respect before he entered the intersection. He was therefore "entitled to rely upon the favorable signal light, until it should have become apparent to him, in time to enable him to avoid the collision by the exercise of ordinary care, that . . . [Koch] was going to proceed in disregard of the lights." Zindell v. Central Mut. Ins. Co. 222 Wis. 575, 580, 269 N.W. 327. As said in Baumann v. Eva-Caroline Home Laundry, 213 Wis. 78, 82, 250 N.W. 773:
"In view of the fact, however, that traffic at this crossing was controlled by lights, and that . . . [Schmidt] entered the intersection with the lights in his favor, he would not have the same obligation to make extended observation [extend his observation after having once made a thorough one] of the highway as would be the case if the traffic was not controlled by lights."
And as said in Raabe v. Brzoskowski, 204 Wis. 319, 321, 236 N.W. 133:
". . . [Schmidt] rightfully entered the street. In doing so . . . [he'] had a right to assume that vehicles proceeding . . . [on Highway 41] would give traffic properly . . . [on Highway 43] an opportunity to clear." See also LaChance v. Stuart, 233 Wis. 246, 251, 288 N.W. 262.
There is in this case no evidence whatever that Schmidt did not make a proper lookout before proceeding into the intersection. He testified that he did, and there is nothing in the testimony or in the circumstances to indicate that he did not or to warrant disbelief of his statement in that respect. Having done this, and it appearing that all traffic on Highway 41 was either stopped or stopping in obedience to the traffic light except Koch, who would presumably stop or so slacken his speed as to give him (Schmidt) time to clear the intersection, we perceive nothing whatever to support the finding of the jury that he was negligent as to lookout. It is true that one bit of Schmidt's testimony, if detached from its context and referred to the time when Schmidt was making his lookout prior to entering Highway 41, would lend support to a finding of negligence for not making further lookout before entering the south traffic lane. The statement was, "When I saw the Buick [Koch's] car I was wondering whether he was going to make the stop or not." But this refers to when he saw the Buick when he "was in the middle of the southbound lane" not to his lookout before entering Highway 41. It is also true that on adverse examination on the trial Schmidt first said that the first time he saw Koch's car was when he (Schmidt) had entered the south lane of Highway 41. But he also said in immediate connection that he could see to the north half or three-quarters of a mile when he looked before entering Highway 41, and that he may then have seen the Koch car "way up the road." It also appears that in his testimony, at the coroner's inquest on the body of the deceased, Schmidt said he thought there was a car south of the Buick. However Schmidt's testimony be taken as to where the Buick was when he first saw it, it is apparent from his testimony, and from Koch's, and from that of the driver of the southbound car that stopped in obedience to the traffic lights that Koch had ample time to stop before reaching the intersection, and that there was then no reason to suspect that any approaching traffic would interfere with Schmidt's crossing Highway 41. In this situation, in absence of any testimony as to any failure on his part to make a proper lookout before entering Highway 41 on invitation of the traffic light, we consider that the jury's finding of negligence as to Schmidt's lookout is contrary to all the undisputed evidence, and the case must be reversed with directions to change the answer of the verdict in that respect and enter judgment dismissing the complaint as to the appealing defendants.
By the Court. — The judgment of the circuit court is reversed, with directions to correct the verdict and enter judgment of dismissal as indicated in the opinion.