Schroeder v. Kuntz

58 N.W.2d 445, 263 Wis. 590, 1953 Wisc. LEXIS 473

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

Opinions

Broadfoot, J.

The defendants contend that the trial court erred in failing to direct a verdict in their favor; that the plaintiff was negligent as a matter of law in respect to speed and lookout; that the plaintiff as a matter of law was at least as negligent as Kuntz; that the negligence, if any, on the part of Kuntz could not be a proximate cause of the collision; and that the damages are excessive.

On the other hand, the plaintiff contends that there was credible evidence to support the'findings of the jury on each issue, including the damages awarded; that the negligence of Kuntz was a proximate cause of the collision; that the comparison of negligence was for the jury; and that the damages awarded are not excessive.

Each party cited several cases in support of his position. Each selected one case in particular and expressed satisfaction with some quotations from the opinion. The defendants cite the case of Woodcock v. Home Mut. Casualty Co. 253 Wis. 178, 33 N. W. (2d) 202, while the plaintiff insists that Brothers v. Berg, 214 Wis. 661, 254 N. W. 384, is squarely in point and should govern this case.

The facts in cases involving a collision between motor vehicles are so dissimilar that we look for principles rather than precedents in the earlier decisions. Each case must be considered upon its own facts. Several cases are cited calling attention to a rule of long standing in this state. The last one is the case of Cook v. Wisconsin Telephone Co., ante, p. 56, 56 N. W. (2d) 494. That decision quoted from Guderyon v. Wisconsin Telephone Co. 240 Wis. 215, 227, 2 N. W. (2d) 242, as follows:

Under these circumstances there was applicable to her conduct in the control and management and the speed at which she continued operating the car, the well-established principle that it is the duty of the operator to drive it at such rate of speed that he can bring his car to a standstill within the distance that he can plainly see objects or obstructions ahead of him; and that if he continues to proceed when he is unable to see because his vision is obscured by smoke, or dust, or darkness, he is negligent.”

In the Cook Case, supra, the following quotation was also given from Mann v. Reliable Transit Co. 217 Wis. 465, 468, 259 N. W. 415, as follows:

“When the situation on a highway is such that one’s vision is completely obscured, it is one’s duty to slow down or even slop until the cause of such obscured vision is at least in part removed. Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207; Leonard v. Bottomley, 210 Wis. 411, 245 N. W. 849; Pietsch v. McCarthy, 159 Wis. 251, 150 N. W. 482. Whether one’s vision is completely obscured by blinding lights, dust, or dense smoke seems quite immaterial. Had it not been raining hard at the time of the accident, we should be inclined to hold that the plaintiff was negligent, as a matter of law, in not discovering that the Sprout truck was standing still.”

The rule was adopted in this state many years ago with the advent of the automobile. We are not unmindful that conditions have changed greatly since the rule was first announced. Highways and motor vehicles have been improved to such an extent that higher speeds are required to move traffic expeditiously. A strict application of this rule in every case might lead to absurd extremes. It might even require a complete stoppage of traffic. This could well lead to more accidents than those that the rule was designed to eliminate. As a result thereof many states, although keeping the rule, are applying exceptions when the circumstances warrant. In our own state we have recognized the camouflage doctrine in several cases. Illustrative of these are Colby Cheese Box Co. v. Dallendorfer, 213 Wis. 331, 251 N. W. 447; Brothers v. Berg, 214 Wis. 661, 254 N. W. 384. Other exceptions are referred to in an exhaustive note in 22 A. L. R. (2d) 292, 304. The rule is still effective in Wisconsin and any further departure therefrom must depend upon the record presented to us in each case.

From the record here we are forced to conclude that the plaintiff was negligent as a matter of law in failing to reduce her speed to a greater extent than her testimony indicates that she did. This does not mean, as the defendants contend, that the plaintiff as a matter of law was at least as negligent as Kuntz. Based upon the facts presented by the record in this case, the comparison is a matter for the jury. There is ample evidence to sustain the finding of the jury as to the negligence of Kuntz and also the finding that the plaintiff was not negligent as to lookout. Our attention is called to no particular act that the plaintiff did, or omitted to do, that was negligent control and management except that she failed to reduce her speed. As our determination on the matter of speed will require a new trial we will not labor the latter point, nor will we further discuss the other allegations of error raised by the defendants.

By the Court. — Judgment reversed and cause remanded for a new trial.