Blahnik v. Dax

125 N.W.2d 364, 22 Wis. 2d 67, 1963 Wisc. LEXIS 413
CourtWisconsin Supreme Court
DecidedDecember 20, 1963
StatusPublished
Cited by16 cases

This text of 125 N.W.2d 364 (Blahnik v. Dax) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blahnik v. Dax, 125 N.W.2d 364, 22 Wis. 2d 67, 1963 Wisc. LEXIS 413 (Wis. 1963).

Opinion

Wilkie, J.

The principal issue raised on this appeal is whether there is credible evidence to sustain the jury’s apportionment of causal negligence, 60 percent as to the appellant and 40 percent as to the respondent.

Dax was traveling at a speed of 50 to 60 miles per hour as he approached the settlement. A jury could reasonably conclude that under the circumstances this speed created an unreasonable risk of harm, even though this speed was within the posted limits in this area. Dax had traveled this route many times prior to the day of the accident, en route to his place of employment in Green Bay from his home in Luxemburg. He knew that young children lived in this area and *70 more specifically, he knew that Barbara Blahnik lived in this vicinity, although he had never seen her along the road as he passed through Walhain. A jury could reasonably conclude that in the exercise of reasonable care Dax should have anticipated that young children might suddenly attempt to cross the highway in this settlement area, and adjusted his speed in the face of this reasonably predictable contingency.

At a distance of 69 feet from the Conard tavern, the building at the westernmost point of the settlement, Dax was traveling between 50 and 60 miles per hour, according to his own testimony. Given this speed at this point, assuming (as he testified) that he applied his brakes full force and immediately upon observing a child crossing the highway, he would have traveled a distance of about 243 feet before stopping. 1 The jury could conclude, therefore, that at this speed he could not adequately respond to the sudden movement of a child across the highway from the settlement area, and that he could not avert the collision.

However, a reasonable jury could also find that Barbara Blahnik was contributorily negligent with respect to lookout, and failure to yield the right-of-way. On the day of the accident, Barbara was delivering newspapers to the businesses and homes located in the settlement area. Immediately prior to the accident, she had delivered a paper to the Con-ard tavern. It was undisputed that, after stopping at the tavern, she intended to deliver a paper to the Cravillion home located on the south side of the highway. There were two versions as to her movements after she dropped off the paper at Conard’s tavern.

According to her own testimony, and the testimony of the tavern owner, Conard, Barbara had parked her bike adjacent *71 to an elm tree located on the north side of the highway, 69 feet west of the west edge of the tavern and the east edge of the Cravillion driveway. Counsel for appellant argues that Barbara was traveling in an easterly direction on the north side of the highway, the same direction as Dax, for some distance before she attempted to cross the highway. Because Dax’s view was unobscured for a distance of one-half mile west of the Cravillion driveway, counsel argues that Dax observed the girl moving in an easterly direction on the north, side of the highway, west of the Cravillion driveway, and played a “guessing game” as to whether she would move across the highway in a southerly direction when she came abreast of the driveway. Counsel argues that the guessing game represents such clearly irresponsible conduct that the verdict in favor of the respondent is clearly against the weight of the evidence.

However, Dax offered another view of Barbara’s pattern of movement across the highway. He testified that as he came abreast of the elm tree, Barbara rode her bicycle out from behind a car parked slightly to the north of the easternmost highway post in a series of posts located IS feet south of the Conard tavern and 10 feet north of the north edge of the concrete on Highway 54. These poles extended in an east-west direction for 20 feet, the westernmost post being six feet east of the west end of the tavern. Therefore, on the straight line east and west, Barbara would have first appeared 26 feet east of the east edge of the Cravillion driveway.

When he saw Barbara, Dax testified that he immediately applied his brakes and turned his car to the right so that his right wheels were on the south shoulder of Highway 54. There were tire marks on the south shoulder of the road east of the Cravillion driveway. The point of impact between his vehicle and the bicycle was 10 to 15 feet east of the east edge *72 of the Cravillion driveway, and one to two feet north of the south edge of the concrete.

Therefore, according to Dax, Barbara began her movement from behind a parked car 26 feet east of the east edge of the Cravillion driveway and 10 feet north of the north edge of the highway, and traveled at an angle across the 20-foot highway to a point one to two feet from the south edge of the highway and 10 to 15 feet from the east edge of the Cravillion driveway. Thus, Barbara traveled 35 feet while he traveled 79 to 83 feet. In view of Dax’s testimony as to his speed, between 50 to 60 miles per hour, and the probable speed of a three-quarter-size bicycle driven by a 54-pound, eight-year-old girl, starting her movement on gravel, it is likely that Dax would have seen Barbara at a more-westerly point than 69 feet from the east edge of the Cravillion driveway. Yet, even assuming that he was 100 feet from the east edge of the Cravillion driveway when he saw Barbara, if he had applied his brakes immediately, he still would have struck the child at a point 15 feet east of the Cravillion driveway, had she followed the pattern of movement he described. At 50 miles per hour, the total stopping distance is 243 feet. 2 Assuming that Barbara was traveling approximately five miles per hour, and appellant’s counsel concedes this is a reasonable assumption, and that Dax was de-accelerating after applying his brakes, Barbara could have traveled a distance of 35 feet while Dax traveled 115 to 120 feet and the vehicles could have intersected at a point 15 feet east of the east edge of the driveway. If Barbara followed the pattern of movement described by Dax, the physical facts are consistent with Dax’s version of the ¡accident.

Importantly, the testimony of Mr. and Mrs. Richard Cymela, eyewitnesses to the accident, supports Dax’s version of Barbara’s movements. The Cymelas were traveling west *73 on Highway 54 in the opposite direction of Dax’s movement. They testified that at a distance of about 900 feet east of the most-easterly highway post in front of the Conard tavern, they observed Barbara move out from behind a parked car a short distance north of the post, on a slight angle to the west, the front of the car facing in a northerly direction, the rear of the car facing in a southerly direction. They further testified that as they.observed her as she moved across the highway from north to south, they simultaneously observed Dax braking his car and pulling to his right. They testified that they observed dust rising from his wheels at the moment Barbara appeared on the gravel north of the north edge of the highway. The Cymelas also placed the point of impact 15 feet east of the east edge of the Cravillion driveway.

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Bluebook (online)
125 N.W.2d 364, 22 Wis. 2d 67, 1963 Wisc. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blahnik-v-dax-wis-1963.