January 9, 1962 —
February 6, 1962.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Affirmed.
For the appellant there was a brief by Eisenberg Kletzke, attorneys, and John W. Bernard of counsel, all of Milwaukee, and oral argument by Sydney M. Eisenberg.
For the respondent there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Reuben W. Peterson, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Peterson.
Action to recover damages for personal injuries received by the plaintiff resulting from a collision between his car and a car driven by Karen Braun which was insured by the defendant.
The accident happened on September 14, 1958, at about 9:30 p.m. on West Good Hope road in Milwaukee county. Karen Braun, then sixteen years of age, with two other teenage girls, had been visiting at a home on North Forty-First street, approximately a block south of West Good Hope road. The Braun car traveled north to West Good Hope road, where it turned east. Plaintiff was driving east on West Good Hope road. He was driving faster than was Miss Braun and attempted to pass to her left, when the Braun car made a left turn toward a private driveway where one the passengers lived. Plaintiff put on his brakes and turned his car to the left but there was a collision when the Braun car was partially in the driveway and partially upon the highway.
The three girls testified that Miss Braun gave a timely signal for a left turn with the directional lights on the car. This was corroborated by a lady who happened to be looking out of the window just prior to and at the time of the collision. Plaintiff said there was no indication of directional lights on the Braun car. He further testified that he blew the horn on his automobile for a distance of 50 feet when he was 150 feet from the Braun car and that he blew it again when Miss Braun started her left turn. Miss Braun testified that she only heard the horn after she made the turn and when plaintiff was within a very short distance of her. Her two passengers testified that they did not hear the horn. Miss Braun testified that she looked back but saw no approaching car before turning.
Questions inquiring as to the causal negligence of Karen Braun with reference to signaling her intention to turn left and with respect to ascertaining that she could make the left turn with reasonable safety were included in a special verdict. The trial court answered the question with reference to ascertaining that she could make the left turn with reasonable safety in the affirmative and also that such negligence was causal. The jury found that she was not negligent with respect to signaling her intention to turn.
Inquiry was made in the special verdict with reference to negligence of the plaintiff as to management and control, lookout, and giving audible warning. The jury found no negligence with respect to management and control but found that plaintiff was negligent with respect to lookout and giving an audible warning. They found that his negligence with respect to lookout was causal but that his negligence with respect to giving audible warning was not causal.
The negligence was apportioned by the jury at 70 per cent to Miss Braun and 30 per cent to the plaintiff, and plaintiff's damages were determined at the sum of $4,000 plus the sum of $44.50 for medical expenses.
Upon motions after verdict the trial court changed the answer of the jury which found that the negligence of the plaintiff with respect to giving an audible signal was not causal from the negative to the affirmative and an order was entered on May 5, 1961, setting aside the special verdict, granting a new trial, and denying all other motions. The plaintiff appealed from said order. The defendant moved for a review of the trial court's denial of its motions for judgment dismissing the complaint on the merits notwithstanding the verdict, and to change the answer of the jury apportioning the negligence of the parties to find each of the parties 50 per cent negligent and for judgment dismissing the complaint upon the special verdict as so amended.
The plaintiff contends that the trial court committed prejudicial error in changing the answer in the special verdict and granting a new trial. He argues that the question of causation under the circumstances of this case was for the jury. He claims further that the questions with reference to giving an audible signal by the plaintiff should not have been submitted and that upon a new trial no such questions could properly be submitted. The latter claim is based upon language in the case of Frankland v. Peterson (1955), 268 Wis. 394, 67 N.W.2d 865, where in the statement of facts this court said (p. 396):
"The court's written decision states that questions (3) and (4) should not have been submitted because the testimony of the two persons in the truck that they did not hear plaintiff's horn was insufficient to raise a jury question m view of plaintiff's testimony that he had blown it."
The plaintiff has misinterpreted that language. This court held that a jury issue was presented on the question of giving an audible signal in the Frankland Case and affirmed the order of the trial court in granting a new trial for other reasons stated by the trial court. No objection was made to the submission of the questions in the special verdict inquiring as to the causal negligence of the plaintiff with respect to giving an audible signal of his intention to pass the Braun car. The correct rule for determining the answers to such questions is contained in the Frankland Case in the following language (p. 397):
"To comply with the purpose of the statute the warning must be given in volume and at a time and place sufficient to inform a driver reasonably attentive to his own obligation to other users of the highway that an overtaking motorist intends to pass him and is about to do so."
There is no challenge as to the sufficiency of the evidence justifying the finding of negligence on the part of the plaintiff with respect to giving an audible signal and, his negligence in that respect being established, it follows that such negligence was a substantial factor in bringing about the accident. Whether it will be proper to submit questions inquiring as to the causal negligence of the plaintiff with respect to giving an audible signal of his intention to pass will depend upon the record when the testimony is closed at the new trial. New evidence may be adduced and we cannot at this time determine that upon a new trial those questions would be unnecessary or improper.
The defendant's motions were properly denied. The record would not have warranted the trial court in granting the defendant's motion for judgment dismissing the complaint notwithstanding the verdict, nor would the record justify the trial court in apportioning 50 per cent of the combined negligence of the parties to the plaintiff.
Making a left turn in front of overtaking traffic without proper observation that the turn can be made safely has resulted in many serious accidents, and is a very negligent act. Any reasonable observation would have revealed the overtaking car. In fact, if any observation was made it is difficult to understand how Miss Braun failed to notice the overtaking car of the plaintiff. Its lights were on and it was in a position on the highway to pass. Therefore we conclude that the trial court ruled correctly.
By the Court. — Order affirmed.