Sell v. Milwaukee Automobile Insurance

117 N.W.2d 719, 17 Wis. 2d 510
CourtWisconsin Supreme Court
DecidedOctober 30, 1962
StatusPublished
Cited by31 cases

This text of 117 N.W.2d 719 (Sell v. Milwaukee Automobile Insurance) 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
Sell v. Milwaukee Automobile Insurance, 117 N.W.2d 719, 17 Wis. 2d 510 (Wis. 1962).

Opinions

Dieterich, J.

The accident occurred on March 27, 1960, at about 1:10 a. m., east of Menasha in Winnebago county. Jerald F. Sell, seventeen years of age, was driving his father’s car west on Highway 114. Sell was accompanied by three other seventeen-year-old boys, John Moore, Richard Lee Coopman, and David Kihl. At Kihl’s suggestion they stopped to see his girl friend, who was at a home [514]*514located on the north side of the highway. When Sell, Moore, and Coopman decided to leave they found that Sell was unable to start the car. The lights were dim and the engine turned over slowly, leading Sell to believe that the battery was dead. Kihl was called from the house and Moore, Coopman, and Kihl then pushed the car, Sell steering, backward onto Highway 114. The boys then pushed the car forward in a westerly direction on Highway 114 in an attempt to start the engine. It was at this time that the collision occurred.

Sell testified that the car he was driving was completely on the shoulder at all times, that the shoulder was about nine feet wide and covered with loose gravel. Sell stated that he saw two cars approaching him from the west about one-half mile away. The second car in line started to pass the first when suddenly Sell heard brakes squeal and saw headlights come right at him. After the head-on collision his father’s car was in the ditch with the entire front end pushed in.

Moore testified that he pushed the Sell car from the rear at the right side. His feet were in gravel and it was his opinion that the entire Sell car was on the shoulder. On cross-examination Moore admitted that on an adverse examination on August 3, 1960, he had answered that he did not know whether any part of the Sell car was on the concrete when the accident occurred. He stated further that according to the side of the car he was on, he did not know whether the Sell car was partly on the concrete.

Coopman testified that he pushed from the rear at the center of the.. Sell car. He looked down as he pushed and saw gravel. It was his estimate that all four wheels were on the shoulder. On cross-examination Coopman was asked: “Could you tell definitely now whether or not the left wheels of the automobile were on the concrete or not? A. I [515]*515couldn’t be positive, but from where I looked at it it looked like it was.” This answer is vague and whether or not it contradicts his prior testimony that all four wheels of the Sell car were on the gravel is speculative.

Kihl testified that he pushed the Sell car from the left rear. All the wheels were on the shoulder and his feet were in the gravel as he pushed. The Sell car was dark green. On cross-examination it was established that a deposition was taken from Kihl on December 29, 1960, before a court commissioner. At that time Kihl testified positively that the two left wheels of the Sell car were on concrete when the collision occurred; that about one half of the Sell car was on the concrete.

Sell, Moore, Coopman, and Kihl all testified that they did not see any lights burning on the Sell car before the accident. Only Sell, the driver of the automobile, saw the Green automobile before the collision.

Edward L. Green, also seventeen years of age, driving his father’s car, hit the Sell car while passing another automobile going in the same direction. Green’s testimony is that he was traveling 45 miles per hoür in an easterly direction on Highway 114. His lights were on low beam as he started to pass the car ahead when he noticed that his lights were reflected off the grill of a car in front of him, that he saw the Sell automobile two or three seconds before he hit it and that he was about 100 feet away when he saw the Sell car and applied his brakes. His speed when he passed was about 40 miles per hour. The westbound car had its lights off and was partly on the shoulder and partly on the pavement. He applied the brakes and then collided with the westbound vehicle, damaging his father’s car from the middle of the grill to the left fender. At no time did his car leave the concrete. On cross-examination Green testified that the car he was overtaking was closer to the center line than the south side of the lane.

[516]*516Ronald Blackwell was the driver of the car which was being passed when the accident happened. His testimony is that he was driving east on Highway 114 between 30 and 35 miles per hour and that it was a dark night. His car was about three or four feet from the center line. At about the time the following vehicle started to pass him, Blackwell noticed the other vehicle, a dark-colored car, 40 to 45 feet distant on the opposite side of the road without its lights on. He did not think there would be sufficient room between his car and the unlighted car for the overtaking vehicle to drive between them, so Blackwell stepped on the gas and swerved to the right in order to avoid being hit in the accident. He stated that enough of the unlit car was on the pavement so that another car could not pass between them. When the collision occurred Blackwell estimated that the rear bumper of his car was even with the rear bumper of the unlighted car.

Blackwell’s wife, Sandra, was sitting beside him in the front seat of the automobile. She testified that the Sell car was a dark color, unlighted, half on the concrete, that it was a dark night, there were no streetlights, and that she did not see the Sell car until 20 or 30 feet from it. She also said that they were traveling 30 to 35 miles per hour, close to the center line of the highway, that there was not room for the Gréen car to go between them and the Sell car, and that her husband swerved slightly to the right. When the accident occurred the back bumper of the car in which she was riding was about even with the bumper of the Sell automobile.

Dennis Wilke, a passenger in the Blackwell car, was sitting in the left rear seat. His testimony is that he saw the unlighted car when they were only 20 to 30 feet away, that stich car was half on the concrete and that it was a dark night. When the collision occurred he thought that the car [517]*517in which he was riding was three feet east of the Sell automobile.

Wilke’s wife, Shirley, was a passenger in the Blackwell car sitting in the right rear. Her testimony was indefinite except as to the position of the Blackwell vehicle at the time of the collision which she said was five or six feet east of the unlighted Sell car.

Officer Misch who investigated the accident testified that he paced off the highway and it was about 33 feet wide. The road surface was wet though the weather was clear. The accident occurred in the country. It was dark and there were no streetlights. On a diagram Misch indicated that the Sell car was in a ditch after the accident and the Green car was placed with its left rear at the center line of the highway.

The record discloses that medical expenses, hospital expenses, and car loss were stipulated, leaving questions as to negligence and damages for the jury.

The jury in its special verdict found that the four boys, Sell, Moore, Coopman, and Kihl were each chargeable with 70 percent causal negligence as compared with Edward L. Green’s assessed causal negligence of 30 percent.

The jury assessed damages to Jerald F. Sell at nil; to John Moore at $750; to Richard Lee Coopman at $5,000; to David Kihl at $1,200; and to Edward L. Green at $750.

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117 N.W.2d 719, 17 Wis. 2d 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sell-v-milwaukee-automobile-insurance-wis-1962.