Heinecke v. Hardware Mutual Casualty Co.

58 N.W.2d 442, 264 Wis. 89, 1953 Wisc. LEXIS 472

• Court: Wisconsin Supreme Court
• Decided: May 5, 1953
• Status: Published

Opinions

Broadfoot, J.

The defendants contend upon this appeal that the claimed acts of negligence by the defendant Anderson were questions of fact for the jury and that there was ample credible evidence to support the findings of the jury. The plaintiffs still insist that Anderson was negligent as a matter of law in respect to lookout and also in respect to failure to yield the right of way. The plaintiffs contend that it was Anderson’s duty as a matter of law to look as far as possible down the highway for approaching traffic and that it was possible for him to look a distance of 1,700 feet and that he only looked 800 feet. The plaintiffs also cite the following statute:

“85.18 (9) Emerging from alley or private driveway. The operator of a vehicle entering a public highway from an alley, garage, or private driveway shall yield the right of way to all vehicles approaching on such highway.”

They contend that this statute, must be literally applied. Such interpretation, of course, would compel a finding that Anderson was negligent as a matter of law in failure to yield the right of way.

The proper determination of this case involves the duty of the driver of a motor vehicle entering a public highway from a private driveway. These duties were defined in the case of Carlson v. Strasser, 239 Wis. 531, 2 N. W. (2d) 233. In that case a truck, parked parallel with the highway, was driven from a private driveway upon the public highway. In that case the court said (p. 535) :

“One entering a public way from a private drive is bound to maintain a proper lookout. If he is causally negligent in the matter of maintaining such lookout that fact would indicate that he could have seen an approaching car and was consequently under a duty to yield the right of way. Neuser v. Thelen (1932), 209 Wis. 262, 244 N. W. 801. Having maintained a proper lookout and having observed conditions upon the highway, the entering driver may proceed if, proceeding with due care, he has time to take his place on the highway without interference with other users of the highway. Dahinden v. Milwaukee E. R. & L. Co. (1919), 169 Wis. 1, 171 N. W. 669; Olk v. Marquardt (1931), 203 Wis. 479, 234 N. W. 723. Had respondent looked there would remain in him the duty of exercising reasonable judgment in calculating on the time and opportunity for entering.”

If applied literally, the above statute would lead to absurd results. No driver could enter a public highway from a private driveway if another car was approaching. The statute does not.limit the term “vehicles approaching” to those in sight. The rules laid down in the Carlson Case, supra, are standards of ordinary care to be applied by a jury to the facts and circumstances in each case.

Applied to this case, before entering upon the highway it was Anderson’s duty to make a proper lookout. It was his duty by such lookout to look a sufficient distance to ascertain that anyone approaching upon the highway at a lawful rate of speed would not interfere with his entering upon and reaching his proper position upon the highway. If he did not look a sufficient distance or if he did not see a vehicle approaching within that distance, then he failed to make a proper or efficient lookout. Having made his observation, he then had to exercise reasonable judgment in calculating the time it would take him to enter and reach his proper position on the highway. If he did not make a reasonable calculation, then he was negligent. Both questions are to be determined by the jury. Anderson did not see the location of the Heinecke car at the time he entered upon the highway. Heinecke did not know where his car was when the truck entered upon the highway. Mrs. Anderson, however, was in a position where she could see the location of the two vehicles. The jury heard and saw the witnesses. It was the sole judge of their credibility. There is sufficient evidence to sustain its findings, and the court should have permitted the verdict to stand.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to reinstate the judgment of the municipal court.