Dinger v. McCoy Transportation Co.

Rosenberry, C. J. We shall deal only with the question of apportionment of negligence. The matter can be more accurately presented in connection with plaintiff’s Exhibit 1, reproduced herewith. The letter X is the point where the driver of the bus testified he entered the intersection traveling at a speed of twenty-five miles per hour. The letter T is the point where he testified the collision took place, and he further testified that the bus traveled about twenty-eight feet beyond point T after the collision. Point Y is where the plaintiff testified he started to make his left turn. The letter K represents the point where the plaintiff testified his car was struck. Hugh Bacon, a disinterested witness, testified that he came down Water street from the north, and saw an eastbound car coming so he waited at the stop sign. The car was on the right side of the highway, the south side, probably a little better than one hundred feet away tO' the west on Wisconsin street. He saw the bus coming some distance to the east at a point not designated on the map. He judged the speed of the car to be fifteen to twenty miles and the speed of the bus to be thirty-five miles an hour. He also testified that the collision took place almost in front of him. As shown on the map the *450 distance from the center of the intersection to the northwest curb is thirty-eight feet. Dinger testified that he put out his left hand and when he was two to five rods back from Water street, that is, west of the west line of Water street, that he put his hand out right after he saw the bus, that when he got four feet into Water street he saw the bus coming and stepped on the gas to try to *451 get out of the way. He further testified, “I mean that just as my car started to come into Water street I started to turn left. I got into Water street on the north side of the center line.” Plaintiff also testified that with reference to Water street he started to turn when he probably was four feet from the northwest corner. According to his testimony he did not come nearer to the center of the intersection than twenty-two or twenty-three feet. He also testified that the bus was running fifty to sixty miles an hour but that he was only thirty feet away when he noticed its speed. When asked why he con-tinued to make his left turn in the face of the fast-moving bus he said, “I was on the north side.” Plaintiff testified that he did not know where the bus Avas when he started to make the turn and did not notice how fast it was going when he first saw it. It further appeared from the evidence that when the bus struck the plaintiff’s car it pushed it thirty to thirty-five feet to the north side of the highway against the curb. The witness Bacon also testified that the bus was about three hundred feet away when he saw Dinger with his hand out, and further testified that Dinger began to make his turn a -rod west of the intersection when the bus was about one hundred feet east of the intersection; that he observed as the bus approached the car that the right front wheel of the bus was skidding, that it was skidding when it entered the intersection. The accompanying illustration of a legal left turn is taken from the Official Drivers’ Manual issued by the motor vehicle department, and indicates the path which the plaintiff should have followed if he had turned into Water street in accordance with the provisions of sec. 85.17 (2), Stats. 1943. It is to be noted from the facts stated that the plaintiff failed to obey this statute in any particular. He did not remain on the south side of Wisconsin street until, in turning, the center of the intersection was immediately to his right. He never *452 reached or attempted to reach the east lane of Water street; he did not continue in the south lane of Wisconsin street until he was in a position to turn from the lane he was in immediately to. the right of the center of the roadway and proceed as closely as possible to the left of the center of the intersection, and he did not leave the intersection immediately to the right of the center of the intersecting highway. He violated sec. 85.18 (5), Stats. 1943, by not giving the vehicle coming from the opposite direction a reasonable opportunity to avoid a collision. In its decision on motions after verdict the trial court said: “The plaintiff testified that he gave a plain signal of his intention to make a left turn. The witness Bacon, who had a *453 commanding position to see what was done or not done, saw the signal so given. The driver of the defendant’s bus says he did not see it. Why did the driver of the bus not see it ? . . . Had the bus driver seen the signal given by Dinger, the plaintiff, (lookout) as indicating his intention of turning, or had the bus been going a little more slowly (speed), or had the driver of the bus swerved a little to his left (management and control), either one of these three things, there probably would have been no accident.” . Assuming that the bus driver had seen the signal he would have had a right to rely upon Dinger’s observance of the law. When D'inger put out his left arm that was not a signal that he was going to turn before he got into the intersection or immediately after and try to cut in ahead of the bus. It was a signal that he intended to make a turn in accordance with the law of the road. As the trial court says, if he had done so no accident would have happened. Under the circumstances of this case if the bus driver had seen the signal, which was made according to Dinger’s testimony from two to five rods west of the west line of Water street and according to Bacon when Dinger was one hundred feet west of Water Street, the bus driver would have had no reason to believe that Dinger intended to violate the law. Dinger certainly violated the provisions of the two sections already quoted in every way possible. It is perfectly evident from the whole record that what the plaintiff was doing was consciously departing from his correct route for the purpose of cutting in ahead of the bus instead of waiting for and making a proper turn. Plaintiff must have concluded that he could not make a legal turn. The negligence of the bus driver, if any, was in his failure to see Dinger’s hand out, which would have been an indication to the bus driver that Dinger would wait for him to pass. Tf the bus driver was driving at an unlawful speed that had but little, if any, causal connection with the accident. We find no evidence that sustains the finding that the bus driver was *454 guilty of lack of control and management. The undisputed testimony is that the front wheels of the bus were skidding as the bus entered the intersection. The finding of the jury to that effect is inconsistent with its finding that the bus driver was not negligent in failing to yield the right of way. There can be no question but that under the circumstances of this case the negligence of the plaintiff was greater than that of the bus driver. Lurie v. Nickel (1940), 233 Wis. 420, 289 N. W. 686; Hansen v. Storandt (1939), 231 Wis. 63, 285 N. W. 370; Barkdoll v. Wink (1941), 238 Wis. 520, 300 N. W. 233; Lardeau v. Johnson (1931), 203 Wis. 509, 234 N. W. 710; J. W. Cartage Co. v. Laufenberg (1947), 251 Wis. 301, 28 N. W. (2d) 925; Grasser v. Anderson (1937), 224 Wis. 654, 273 N. W. 63. For the reasons stated the judgment must be reversed. By the Court. — Judgment reversed with directions to dismiss the plaintiff’s complaint.