Dyer v. Hardware Mutual Casualty Co.

17 Wis. 2d 81
CourtWisconsin Supreme Court
DecidedJune 5, 1962
StatusPublished

This text of 17 Wis. 2d 81 (Dyer v. Hardware Mutual Casualty Co.) 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
Dyer v. Hardware Mutual Casualty Co., 17 Wis. 2d 81 (Wis. 1962).

Opinion

Fairchild, J.

1. Error as to instructions. Plaintiffs contend the trial court erred in failing to give several requested instructions.

a. Applicability of rules of road to Youngman. Young-man was plowing a private drive and not the highway.1 All parties appear to agree that Youngman was therefore not actually engaged in maintenance work upon a highway and that the rules of the road apply to him.2 Plaintiffs requested an instruction so stating but the court refused to give it.

The court instructed the jury on the statutory duty of Youngman to yield the right-of-way if entering the highway as Dyer claimed, instructed on the duty of each driver with respect to lookout, instructed on the duty of each with respect to management and control, and on the statutory regulations of speed. These instructions were prefaced by the statement that there are—

“. . . rules of law as well as statutes enacted by the legislature for safe operation of vehicles on the highways. A [83]*83person who fails to comply with such rules or statutes is negligent as that term is used in the verdict and in the court’s instructions.”

There was no suggestion that the rules and statutory duties were less applicable to Youngman than to Dyer. We do not find that plaintiffs were prejudiced by the court’s refusal of the instruction requested.

b. Lighting. There was no issue as to the sufficient compliance by Dyer with the statutory requirement of headlights nor as to the sufficient compliance by Youngman with the special requirement of lights on road machinery. There was testimony that among other lights on the grader there was an amber floodlight on the right-hand side of the cab that “floods the machine.” This light was on although one blade of the grader was elevated so that it obstructed Dyer’s observation of the light. He testified that no lights were visible to him. The grader was painted yellow.

The court did instruct the jury as to the conditions under which high-beam and low-beam headlights are to be used and the intensity required of each headlight beam. He told the jury that there was no specific question as to the lights of either vehicle but that he was of the opinion that because of the issues, and particularly the arguments of counsel, the court should give this information. Dyer had testified that just before the collision, he had met westbound vehicles, had depressed his headlights, and had not had time to elevate them after the last car passed and before seeing the grader. Youngman denied the presence of westbound traffic. Presumably the court felt the jury should know the statutory standards for headlights because of this dispute and because of the fact that Dyer testified he first saw the grader at about 100 feet from- it. We do not find that plaintiffs were prejudiced by the giving of instructions as to headlight require[84]*84ments without giving the instruction as to the lighting requirements of road machinery.

c. Right-of-way. One of the disputes in the testimony was whether Youngman was entering the highway while Dyer was approaching. The jury apparently found that Youngman was out in the highway before Dyer approached. The trial court instructed the jury:

“. . . if you find that the snowplow driven by Charles J. Youngman was entering rather than leaving the highway, then it became the duty of the driver entering the highway to yield the right-of-way to the automobile on the highway.”

Plaintiffs requested that the jury be instructed:

“If at the time of impact, or immediately prior thereto, the county machine occupied any part of the right side of the roadway for eastbound traffic, including the plaintiff Lawrence Dyer’s, then the county machine violated the right-of-way afforded by the law to the plaintiff Lawrence Dyer.”

Sec. 346.05 (1), Stats., provides in part:

“Vehicles to be driven on right side of roadway; exceptions. (1) Upon all roadways of sufficient width the operator of a vehicle shall drive on the right half of the roadway and in the right-hand lane of a three-lane highway, except: . . .”

Plaintiffs seem to contend that the statute just quoted requires a driver (at least when not operating in a lane along a highway) to yield the right-of-way to any automobile driven on its right half of the roadway. The statute, however, does not say so. Undoubtedly a driver who finds it necessary to execute unusual maneuvers on a highway must exercise reasonable care to avoid endangering those who are using the highway in normal fashion. In the case before us Youngman’s duty in this respect was undoubtedly, considered [85]*85in answering the questions on lookout, and management and control.

A right-of-way exists when provided by statute.3 Sec. 346.18 (4) requires the operator entering a highway from a point of access other than another highway to yield the right-of-way to all vehicles approaching on the highway he is entering. The jury found that Youngman did not violate this statute. Plaintiffs cite no other statute requiring a right-of-way which he may have violated.

d. Speed. The court instructed on the duty of a motorist in the nighttime to drive at such a rate of speed as will permit him to stop within the distance he can see ahead.4 The court refused to give a requested instruction that the rule does not apply to situations where the obstruction although within the range of headlights may not reasonably be discovered because it blends with the color of the roadway or surroundings.

If it was error to omit the camouflage instruction, it would not be prejudicial since it would affect only one of the findings of negligence of the plaintiffs and there was no finding of negligence on the part of Youngman. Furthermore, although Dyer and his wife testified that the grader looked to them like a gray wall without contrast with the snowy background, the grader was yellow and it is not clear that the testimony of Mr. and Mrs. Dyer with respect to the way the grader looked to them is sufficient to entitle them to an instruction on camouflage as a matter of right.5

e. Lookout. The court referred to the subdivision of the special verdict inquiring whether Youngman and Dyer were negligent with respect to lookout. Then he instructed that it is the duty of every operator to exercise ordinary care, [86]*86to keep a careful lookout ahead and about him and to the rear if occasion requires. In the four succeeding paragraphs he instructed on various aspects of the duty of lookout owed by every driver. Then he gave an instruction which could have applied only to Youngman. It began, “Because of the preference the law gives to traffic on a through highway the duty of a driver entering upon a through highway as it is claimed by plaintiff that Charles Youngman was, with respect to lookout, requires . . . .” This instruction ended, “However this rule applies only in the event you find that the defendant Charles J. Youngman was entering rather than leaving the through highway.” Plaintiffs claim that the closing sentence informed the jury that if it accepted Young-man’s testimony he had no duty as to lookout.

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103 N.W.2d 922 (Wisconsin Supreme Court, 1960)
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26 N.W.2d 653 (Wisconsin Supreme Court, 1947)
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Cite This Page — Counsel Stack

Bluebook (online)
17 Wis. 2d 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyer-v-hardware-mutual-casualty-co-wis-1962.