The defendants raise the following contentions on this appeal:
(1) There is no credible evidence to support the finding of causal negligence against the defendant Campbell with respect to his stopping on the highway.
(2) The plaintiff Vidakovic was guilty of causal negligence as to speed as a matter of law.
(3) If Campbell were negligent, the negligence of Vidakovic was at least equal to that of Campbell as a matter of law.
(4) A new trial should be directed because of alleged error in the instructions.
In passing on the issue of whether there is any credible evidence to substantiate the jury's finding of causal negligence as to Campbell's stopping on the highway, it is only necessary for this court to consider such testimony and other evidence which supports the finding. Heibel v. Voth (1955), 271 Wis. 350, 353, 73 N.W.2d 421, and Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 109, 62 N.W.2d 549, 63 N.W.2d 740.
At the time of the accident Campbell was seventy-seven or seventy-eight years old. He resided in a home located on
It was a dark, rainy night and, to reach home, Campbell drove easterly on Highway 50 which has a concrete pavement covered with black-top 22 feet in width. A private driveway eight to nine feet wide, having an apron about 24 feet wide at its mouth next to the highway, extended at right angles southerly into Campbell's premises. The center of such driveway is 381 feet east of the intersection of County Trunk Highway D and Highway 50, and 237 feet west of the crest of the incline or hill which extends easterly upgrade from such intersection past this private driveway. When Campbell arrived at such intersection with County Trunk Highway D he shifted into second gear, depressed his clutch pedal, coasted toward his own driveway, and then applied his brakes so as to come to a complete stop. When so stopped, the front end of the car was about even with the center of the driveway with about a foot and a half of the vehicle off the south edge of the pavement and its remaining portion on the pavement.
Campbell testified that it was his usual custom to bring his car to a stop before attempting to turn into his driveway because there was a steep bank at the east edge and a ditch at the west edge of the driveway. However, he admitted that if he proceeded slowly he could make the turn into the driveway without stopping. As he arrived opposite his driveway,
In considering the question of whether there is any credible evidence which sustains the jury's finding that Campbell was causally negligent in stopping his car where he did, the following provision of sec. 85.19 (1), Stats., is pertinent:
"No person shall park, stop, or leave standing any vehicle, whether attended or unattended, upon any highway outside a business or residence district when it is practical to park, stop, or leave such vehicle standing off the roadway of such highway. . . ."
From the foregoing summary of the evidence, the jury had the right to infer that Campbell had stopped his car in front of his driveway before he was blinded by the headlights of the first of the two vehicles approaching from the east. Therefore, the jury would have been entirely justified in concluding that Campbell, by the exercise of ordinary care, could have turned into his driveway without stopping and before he was blinded by any headlights. This being so, it is our conclusion that the finding of causal negligence on the part of Campbell is sustained by credible evidence.
A reasonable inference would appear to be that the jury, by finding Vidakovic causally negligent with respect to failing to keep a proper lookout but not as to speed, concluded that his reduced speed after first applying his brakes was sufficient to have enabled him to stop his car before striking the Campbell vehicle if he had maintained a proper lookout. This hypothesis is strengthened by the fact that Holt saw the Campbell car before Vidakovic.
The case at bar is readily distinguishable from Quady v. Sickl (1952), 260 Wis. 348, 51 N.W.2d 3, 52 N.W.2d 134, where a driver, who was blinded by the headlights of an approaching vehicle, proceeded ahead at a speed of 50 miles per hour. Here Vidakovic did take steps to reduce his speed as soon as his vision was obscured.
It is our conclusion that in view of the facts of this case, and especially the finding of causal negligence as to Vidakovic's lookout, the question of his speed lay within the province of the jury to determine.
The third point urged by the defendants is that the negligence of Vidakovic is, as a matter of law, at least equal to that of Campbell. The authorities cited in such contention are Quady v. Sickl, supra, and Hephner v. Wolf (1952), 261 Wis. 191, 52 N.W.2d 390. We attempted to make it clear in the later cases of Schroeder v. Kuntz (1953), 263 Wis. 590, 58 N.W.2d 445, and Jennings v. Mueller Transportation Co. (1955), 268 Wis. 622, 68 N.W.2d 565, that this court is not committed to the principle that the
There is no extraordinarily negligent conduct on the part of Vidakovic such as was present in the Quady and Hephner Cases. We have above alluded to the high degree of negligence of the driver in the Quady Case whose car collided with the stopped vehicle. In the Hephner Case, Hephner's car collided with a stopped truck which he testified he saw when he was 200 to 300 feet away from it and yet did nothing to avoid a collision until he had arrived to within 50 to 75 feet of it.
We have no hesitancy in holding that the comparison of negligence in the case at bar presented solely a jury issue.
We now turn to the last contention advanced by the defendants, viz., that they are entitled to a new trial because of error in the trial court's instructions to the jury. The instruction complained of was given with respect to the question of the verdict which inquired as to whether Vidakovic was negligent as to the speed at which he operated his automobile, and read as follows:
"However, you are also instructed if the situation on a highway is such that a driver's vision is completely obscured, it is his duty to slow down or even stop until the cause of such obscured vision is at least in part removed, provided there is time and distance in which in the exercise of ordinary car to accomplish such stop before the vehicle comes into collision with some object on the highway which is completely obscured from the vision of the driver." (Emphasis supplied.)
Defendants urge that the above-italicized proviso in such instruction constituted error.
We are, therefore, of the opinion that the instruction, while erroneous, was not prejudicial. This is because if the jury were of the opinion that there was insufficient time for Vidakovic to have stopped his car so as to avoid a collision with the Campbell automobile, when his vision first became obscured, it would have had to have determined that any negligent speed on the part of Vidakovic was not causal. There is no claim made that Vidakovic's speed, prior to the time his vision became obscured, was excessive.
By the Court.—Judgment affirmed.
FAIRCHILD, C. J., and MARTIN, J., dissent as to the apportionment of negligence.