63 N.W.2d 723
Supreme Court of Wisconsin.March 4, 1954 —
April 6, 1954.
Page 438
APPEAL from a judgment of the circuit court for Eau Claire county: CLARENCE E. RINEHARD, Circuit Judge Affirmed.
This is an action to recover damages for injuries sustained by the plaintiff in a collision between a car driven by him and a truck owned by the defendant Ross which was driven by the defendant Prochaska. The accident occurred at about 4:30 p. m. on the 17th day of October, 1952, on Highway 53 on the easterly outskirts of the city of Eau Claire. At the place of the accident Highway 53 runs in a northerly and southerly direction. About a mile of the highway was being widened from a two-lane to a four-lane highway. The concrete slab had been laid, 72 feet in width. Curbs and gutters were to be installed on the east and west sides of the highway, and the travelable portion of the highway was narrowed somewhat by snow fences, flares, and sawhorses. The extent of the encroachment of these articles on each side is not clear from the record, but apparently they extended from three to five feet upon the highway. About midway in the mile project Highway 53 is intersected by Valmont avenue, which runs in an easterly and westerly direction. Valmont avenue to the west was blocked by snow fence, but there was
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an opening to the east to permit the entrance of vehicles going in that direction.
Prior to the accident the plaintiff was driving his automobile in a southerly direction and he intended to make a left turn and drive east on Valmont avenue. The defendant Prochaska was driving north upon the highway. The Ross truck which he was driving carried a load of approximately six tons of potatoes. The plaintiff turned his car in a southeasterly direction and brought it to a stop at a point about 19 feet from the east edge of Highway 53. He stopped because a car was driving west on Valmont avenue and that car blocked the east entrance to Valmont avenue. The plaintiff saw the defendant Prochaska when he was about one-half block or more to the south. Prochaska saw the plaintiff and his car when he was about 150 feet south of the intersection. He too saw the car driving west on Valmont avenue. Prochaska applied his brakes when he saw the plaintiff. He released the brakes to some extent when he saw the plaintiff stop, and then again applied his brakes.
Up to this point there was little dispute as to the facts. The plaintiff testified that Prochaska swerved to the left and he thought he was going to pass his car to the left, but that he suddenly turned to the right and struck the front end of plaintiff’s standing car. Prochaska testified that he continued in his same line of travel but just before he passed the plaintiff’s car the plaintiff started it in motion and the plaintiff’s car struck the truck on the left side.
The case was tried to the court and a jury. In its answers to the special verdict the jury found Prochaska causally negligent as to speed. He was not found negligent as to lookout nor as to management and control. The jury found the plaintiff to be causally negligent as to lookout and causally negligent for failure to yield the right of way. The plaintiff was not found negligent as to management and control. In
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comparing the negligence of the two drivers the jury apportioned 75 per cent thereof to the plaintiff and 25 per cent thereof to Prochaska. Judgment dismissing plaintiff’s complaint was entered July 6, 1953, and the plaintiff appealed.
For the appellant there was a brief and oral argument b Frank L. Morrow of Eau Claire.
For the respondents there was a brief and oral argument b Donald L. Farr and G. Donald Barnes, both of Eau Claire.
BROADFOOT, J.
The plaintiff first contends that the jury’s finding that he was guilty of causal negligence in respect to lookout was not warranted by the evidence. He contends that he saw the truck and everything else that was to be seen, and therefore he could not be found to be negligent with respect to his lookout, and that even though he were negligent in that respect, since his car was stopped, any failure of lookout on his part was not a substantial factor so far as the accident was concerned.
If there had been no dispute in the testimony we could agree with the plaintiff’s contention. However, Prochaska testified that as he approached the plaintiff’s car the plaintiff started it in motion and struck the left side of the truck. Another witness, Raskin, testified that he talked to the plaintiff after the accident and the plaintiff told him that he didn’t see the truck until it was too late to avoid running into the side of the truck. If the plaintiff started his car in motion and struck the left side of the truck, the jury could infer that he did not see it. Because of the dispute in the testimony it was a matter for the jury to determine. The testimony of Prochaska and Raskin is sufficient to support the answers as to lookout.
Included in the special verdict was a question inquiring as to the negligence of the plaintiff with respect to yielding the right of way. The plaintiff objected to the inclusion of this question, contending that the question of right of way
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was not involved. He now claims it was error on the part of the court to submit such question; that if it was not error, the court did not fully instruct the jury as to right of way; and that if the question were submitted it should have been made contingent upon the jury’s finding as to the defendant’s speed.
Sec. 85.18, Stats., is entitled “Right of Way.” Sub. (5) thereof reads as follows:
“Vehicles turning left at intersections. The operator of a vehicle within an intersection intending to turn to the left across the path of any vehicle approaching from the opposite direction, may make such left turn where it is permitted only after affording a reasonable opportunity to the operator of such vehicle to avoid a collision.”
In our opinion it would have been preferable to submit a question inquiring as to the negligence of the plaintiff with respect to the manner in which he made his left turn. The court instructed as to the foregoing subsection, and it does not appear from the record that the jury was misled by the form of the question. We cannot see that the question or the instructions thereon were prejudicial to the plaintiff. There is evidence to support the answer of the jury. The provision that a driver exceeding the lawful rate of speed shall forfeit his right of way is contained in sec. 85.18(1), Stats., and is not applicable to sub. (5) thereof. The evidence supports the finding of the jury and we find no prejudicial error in the trial.
By the Court. — Judgment affirmed.
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