Homerding v. Pospychalla

280 N.W. 409, 228 Wis. 606, 1938 Wisc. LEXIS 227
CourtWisconsin Supreme Court
DecidedJune 21, 1938
StatusPublished
Cited by3 cases

This text of 280 N.W. 409 (Homerding v. Pospychalla) 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
Homerding v. Pospychalla, 280 N.W. 409, 228 Wis. 606, 1938 Wisc. LEXIS 227 (Wis. 1938).

Opinion

Fritz, J.

The plaintiff, Lucille Homerding, was injured upon the overturning of an automobile which was being operated by Theodore Homerding, her husband, and in which she and Lenore Hitz and Ray Kielhofer were passengers. The automobile was swung around and overturned when its right rear spring was struck by the left front fender of an automobile operated by the defendant, Pospy-challa, at the intersection of State Highway No. 45 and County Trunk Q in Oneida county. For a considerable distance to the north and south of that intersection No. 45 is straight and level and has a concrete surface twenty feet wide, with a one-foot-wide apron along its west side at the intersection with “Q,” which does not extend to the east of No. 45. Both cars approached the intersection from the south. No other cars were in sight. Theodore Homerding intended to turn westward on “Q,” and it is undisputed that when he was one hundred fifty feet south of the intersection and traveling at thirty to thirty-five miles per hour he started angling westward from the east - lane across the marked center line. He testified that when he was about to angle westward he put out his hand a second, and observed in his rear-view mirror that a car was following “maybe” two or three blocks behind him; but that while traveling the one hundred fifty feet to the intersection he made no- further observation for traffic approaching from the rear. He claims that he continued angling off to the west and that, [609]*609when he had reached the intersection and turned onto “Q” so that his front wheels and possibly also his left rear wheel were off the concrete, Pospychalla’s car struck and whirled his car around to^ the northwest.

On the other hand, Pospychalla and his passengers, Clarence Prosser and Eugene Wallinger, deny that any one in Plomerding’s car had signaled by putting out a hand; and that Homerding continued angling westward, after he first began to do so, when he was one hundred fifty feet from the intersection. Instead, their testimony is to the effect that in traveling those one hundred fifty feet Homerding, after first edging westward across the center of the road, turned back to the east once or twice in front of Pospychalla’s car, approaching in the east lane at forty to forty-five miles per hour, until it was about thirty feet behind Homerding’s car; and that when Pospychalla’s car was quite close Plomerding, without giving any signal, turned sharply to the left in the intersection to swing onto “Q,” and that the rear wheels of his car were to the east of the black line, at the time of the collision.

The jury found that there was causal negligence (1) on the part of Pospychalla in respect to (a) lookout and control, (b) following Homerding’s car too closely, (c) signaling intention to pass, and (d) speed; and (2) also on the part of Homerding (a) in respect to lookout and control, but not (b) in respect to driving to the left of the middle of the road, (c) signaling, or (d) speed; and (3) also found that of the total causal negligence ten per cent was attributable to Homerding, and ninety per cent thereof to Pospy-challa. Upon motions after verdict the court changed the jury’s finding that Homerding was negligent in respect to lookout and control from “Yes” to “No;” and thereupon entered judgment for the recovery from Pospychalla and his insurer of the plaintiff’s and Theodore Plomerding’s dam[610]*610ages as assessed by the jury, and also for the dismissal of the cross complaint for contribution filed by Pospychalla and his insurer.

On this appeal the latter, as appellants, raise no- issue regarding the jury’s findings in respect to negligence on the part of Pospychalla. Plowever, they contend that the court erred in substituting its finding that there was no causal negligence on the part of Homerding “in respect to lookout and control of his car,” for the jury’s' verdict that there was such negligence, and that it constituted ten per cent of the total causal negligence. Appellants’ contentions in that respect must be sustained in view of evidence, which the jury could consider credible, to the following effect. As Homerding approached the intersection, the control of his car was such that, commencing one hundred fifty feet south of “Q,” it first angled off tO' the west once or twice across the center line in such a manner as to- reasonably warrant Pospychalla in assuming that Homerding intended to continue angling off to the left of the east lane, and westward on “Q” (as Homerding claims he did) ; but that instead of continuing to do that, Homerding, with his speed reduced to fifteen miles per hour, cut back to the right lane in front of Pospy-challa’s car when it was quite close, and then, without any signal, swung sharply to the west in the intersection so that the rear wheels of his car were still east of the black center line of No. 45 when the right rear spring thereof was struck by the left front fender of Pospychalla’s car. Under those circumstances, the wavering and erratic course of Homer-ding’s car, while he was aware that another car was approaching from the rear, warranted the jury in finding that there was some causal negligence on his part in respect to control. Likewise, as he admitted that while driving the last one hundred fifty feet he made no further observation in respect to the car approaching from the rear, although, as [611]*611the jury could find under the evidence, he crossed' to the west and east of the center line, the jury was warranted in finding that there was causal negligence on his part in respect to lookout in view of the rule that “If there is any credible evidence which in any reasonable view admits of an inference that supports the jury’s findings, the trial court may not change the answers.” Duss v. Friess, 225 Wis. 406, 413, 273 N. W. 547; Jensen v. Jensen, ante, p. 77, 279 N. W. 628. Consequently, the court erred in substituting its findings for the jury’s answers in relation to causal negligence on the part of Theodore Homerding in respect to lookout and control, and comparative negligence, and those answers must be reinstated. Upon those answers, Pospy-challa and his insurer are entitled to judgment on their cross complaint against Theodore Homerding for the recovery of contribution from him for half of such amount as they pay to the plaintiff, in satisfaction of her judgment; and his recovery upon his counterclaim must be reduced to- ninety per cent of his damages, as assessed by the jury, and that recovery the appellants are entitled to- have used as an offset against his liability for contribution herein.

The appellants further contend that Theodore Homer-ding was also guilty of causal negligence because, in angling off to the left to turn west on “Q,” he violated sec. 85.17 (2), Stats., which provides:

“The operator of a vehicle intending to turn to the left at an intersection or into a private highway shall make such turn from the traffic lane immediately to the right of and next to the center of the highway and shall pass immediately to the left of the center of the intersection, passing as closely as practicable to the left of the center of the intersection, and shall leave the intersection immediately to the right of the center of the intersecting highway.”

It is true that Homerding, in angling to the west of the center line to turn west on “Q,” before even reaching the [612]*612intersection violated that statute, but that violation was not a cause of the collision under the circumstances in this case. On the contrary, if he had but continued to make his turn westward into “Q”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Checker Yellow Cab Co. v. Shiflett
351 P.2d 660 (Wyoming Supreme Court, 1960)
Ready v. Hafeman
300 N.W. 480 (Wisconsin Supreme Court, 1941)
Hitz v. Pospychalla
280 N.W. 413 (Wisconsin Supreme Court, 1938)

Cite This Page — Counsel Stack

Bluebook (online)
280 N.W. 409, 228 Wis. 606, 1938 Wisc. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/homerding-v-pospychalla-wis-1938.