Nelson v. Klemm

The following opinions were filed December 6, 1932: Wickhem, J. The sole issue upon this appeal is whether the evidence shows, as a matter of. law, that plaintiff was guilty of contributory negligence. The accident happened at the intersection of county line road with state highway 16. The plaintiff was traveling south on the county line road, which is a graveled highway. As he approached the intersection of this road with state highway 16, he saw the defendant’s car, which was proceeding east on the state highway. At the time when plaintiff first saw defendant’s car he was about seventy to eighty feet from the concrete highway. At that time plaintiff claims that it was from 300 to 400 feet west of the intersection. He further claims that he watched the car for a moment, estimated that it was traveling between twenty-five and thirty miles an hour, and concluded that he had ample time to cross the intersection. Upon reaching the north edge of the concrete, and after making observations to the east, plaintiff looked west and saw defendant’s car, as he estimated, about 100 to 150 feet west of the intersection, traveling at that time at a speed which he judged to be between forty-five and fifty miles an hour. He realized immediately that there might be an accident, and concluded that to apply his brakes would result in [434] a collision. He therefore proceeded in a straight line across highway 16. It is plaintiff’s claim that at the moment of impact the front wheels of plaintiff’s car were fifteen feet south of the concrete, and the rear portion entirely clear of the concrete. Fairly construed, we think plaintiff’s testimony cannot be said to be contrary to the physical facts, and the jury having accepted his version, it must be taken as a verity. Defendants have argued that defendant’s car could not have been 300 or 400 feet away at the time plaintiff -made his observation, for the reason that this would require the defendant driver to proceed at an impossible rate of speed in order to be at the' intersection when plaintiff arrived there. However, plaintiff’s testimony represents only an estimate, and a very broad estimate, because, as heretofore indicated, he states that the defendant’s car was from 300 to 400 feet from the intersection. We think the jury was entitled to construe this simply as plaintiff’s estimate that defendant’s car was much further from the intersection than he was and proceeding at the same speed, so that plaintiff was entitled to conclude that he had ample time to cross in safety. It is the contention of the defendants that plaintiff failed to keep an efficient lookout. This is based upon the fact that plaintiff’s first observation was made when he was from seventy to eighty feet from highway 16, and that his next observation was not made until he was at the edge of the concrete and no longer able to put into effect any of the warnings that a lookout would give. It is the contention that plaintiff clearly would have been negligent had he not made any further observation after the first observation, and that since his second observation was not made at a point where it could do him any good, he was negligent. On the part of the plaintiff it is contended that the observation made seventy to eighty feet from the intersection was efficient and adequate; that plaintiff saw the defendant’s car approaching, estimated its speed, and concluded that he [435] could safely cross ahead of it; that the plaintiff had other observations to make to the east and south, and that he made them, and that when he again looked to the west it was apparent that defendant had changed the speed at which he was driving; that the plaintiff was then presented with an emergency; that this emergency was discharged as well as it could be, and that he had practically cleared the intersection at the time of the accident. The ease resolves itself into this question: Is a driver, approaching the intersection of two country highways, who makes a single observation at a point seventy to eighty feet from the intersection, and thereafter crosses the intersection without a second look, guilty of contributory negligence as a matter of law, in spite of the fact that his view was unobstructed at the point where the observation was made and that the observation had disclosed the presence of the other car on the intersecting highway proceeding at such a distance from the intersection and at such a speed as to lead him to conclude that he could safely clear the intersection ahead of it? It may be that there is some point beyond which it could be said as a matter of law that a final observation could not be made in the exercise of due care, no matter what the observation disclosed, but whether this is true or not, and it is unnecessary to determine this here, we cannot say as a matter of law that a point seventy to eighty feet from the intersection is beyond this limit under all the circumstances of this case. In Werner v. Yellow Cab Co. 177 Wis. 592, 188 N. W. 77, plaintiff’s last observation was made when he was fifteen feet from the curb line but at a point approximately sixty feet from the place of collision. This court held that the question as to whether plaintiff should have made further observations was one for the jury. In Pichler v. Ladwig, 194 Wis. 535, 217 N. W. 320, plaintiff’s last observation was made at a point about twenty-three feet from the intersection. This court declined to hold [436] plaintiff negligent as a matter of law for not making a second observation, stating that such a rule would be “to put drivers of automobiles in strait-jackets and make it well-nigh impossible for them to make comprehensive observations at street intersections.” In Hein v. Wendlandt, 207 Wis. 139, 240 N. W. 815, plaintiff was approaching an intersection and made an observation when he was fifty feet from the intersection, during the course of which he saw the defendant’s car but underestimated its speed. Plis estimate was that the defendant’s car was from ninety to one hundred feet from the intersection. There was no evidence of a second observation until plaintiff was about ten feet from the intersection, when it was too late for him to stop his car. This court declined to hold plaintiff negligent as a matter of law. The case of Thieme v. Weyker, 205 Wis. 578, 238 N. W. 389, is relied upon by defendant. In this case the accident happened upon a city street carrying heavy traffic. Plaintiff’s sole observation was made after passing the house nearest the intersection and 125 feet from it. At the time of making the observation he could not see down the intersecting street further than the distance he was away from the intersection. There was then no car in sight. He made no further observation before entering the intersection. Plaintiff based his right to proceed without a second observation upon the hypothesis that he might properly assume that any one approaching the intersection would be proceeding at a lawful rate of speed and would yield him the right of way. The court rejected this contention, holding that it was apparent that no such assumption could be made because “the premise that a car approaching at a lawful rate of speed on the intersecting street would not reach the intersection until after the plaintiff is false.” It seems to us that this case is clearly distinguishable. In the Thieme Case the plaintiff had a limited view of the intersecting street, and at the point [437] where the observation was made, could not make a sufficient observation reasonably to come to the conclusion that no car approaching on his right and proceeding at a lawful rate of speed would be in competition for the intersection. In the instant case the plaintiff had an unlimited view of the intersecting highway, saw defendant’s car, was able to judge its speed and distance from the crossing, and thus had a basis of fact for the conclusion which he then drew, and which the jury found he could have drawn, in the exercise of due care. We think the cases of Werner v. Yellow Cab Co., supra, Pichler v. Ladwig, supra, and Hein v. Wendlandt, supra, are more nearly applicable, although the distances at which the sole observation was made in those cases was somewhat shorter than in this case. We are unable to say as a matter of law, under all the circumstances, that the distance involved in this case was so great as to make reliance upon the observation contributory negligence as a matter of law. It follows from the foregoing that judgment must be affirmed. By the Court. — Judgment affirmed.