Schmit v. Jansen , 247 Wis. 648 ( 1945 )

^* Motion for rehearing denied, with $25 costs, on January 8, 1946. Action for damages commenced November 7, 1944, by Ida Schmit against Dallas W. Jansen as guardian ad litem for Janette Jansen. From a judgment for plaintiff, defendants appeal.

A collision occurred at the intersection of Wisconsin avenue and North Division street in the city of Appleton on the afternoon of September 16, 1944. Plaintiff, Ida Schmit, was riding in a car owned jointly by her husband and herself. Her husband was driving north on Division street. Defendant Janette Jansen was driving her automobile east on Wisconsin avenue, accompanied by her mother. Wisconsin avenue is an arterial highway thirty-six feet wide. North Division street is only twenty-five feet wide. There is an arterial stop sign of the west side of Division street on the north side of Wisconsin avenue. There is also an arterial stop sign on the south side of Wisconsin avenue, twenty-six feet from the south curb of Wisconsin avenue on the east side of North Division street. On the afternoon in question the stop sign had been turned so that the edge was facing the Schmit car as it was driven north on North Division street. The defendant, a girl of seventeen, was proceeding at a speed of about twenty miles an hour. As she neared the crosswalk her mother observed the Schmit car approaching at about twenty miles an hour. She noticed that it was not going to stop at the arterial and warned Janette who applied her brakes but was unable to avoid the collision. The collision occurred in the center of Wisconsin avenue, the defendant's car striking the Schmit car near the rear left end. As a result of the accident, the husband of plaintiff was killed and plaintiff suffered personal injuries. Defendant testified that she made no observations to the right and that she did not know of the approach of the Schmit car. until she was warned by her mother. Her mother testified that she noticed that Mr. Schmit, the driver, did not look at defendant's car as he approached the intersection. The jury found defendant negligent as to speed, lookout, and failure to yield the right of way, and that such negligence was a proximate cause of the collision. The decedent, Frank Schmit, was found to be guilty of negligence as to speed, lookout, and control and management of the automobile. It found defendant sixty per cent to blame and deceased forty per cent and judgment was entered.

The case was tried to the court and jury. The defendants contend that the charge to the jury, as to the respective rights of the parties resulting from the turning of the arterial sign, was erroneous and misleading, constituting prejudicial error; and that there is no evidence that defendant was negligent. The case was finally submitted to the jury with the instruction that if the artery were not marked by an official stop sign or traffic signal in conformity with the regulations of sec. 85.71, Stats., then sec. 85.18(1) applied. This section provides that, when two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. The court erred in thus charging the jury. "An automobilist, with knowledge of the location of a stop sign, has the right .to rely, when crossing the intersection, on the assumption that any one approaching will observe it, and similarly a traveler on a boulevard or arterial highway has a right to expect an operator of a motor vehicle on an intersecting street to stop before entering thereon." 2 Blashfield, Cyclopedia of Automobile Law and Practice, p. 216, sec. 1032;Loizzo v. Conforti (1932), 207 Wis. 129, 240 N.W. 790;Stabler v. Copeland (1942), 304 Mich. 1, 7 N.W.2d 122. The right to make this assumption cannot be taken away because the stop sign, without the knowledge of the driver on the arterial highway, had been accidentally turned so as to fail to conform with the requirements of law. It is likewise true that a person proceeding in the exercise of ordinary care cannot be held negligent in failing to stop at an intersection with an arterial highway with which he is not familiar and which is not properly marked with a lawful stop sign.

The turning of the stop sign set the stage for the collision. Each party was relying on a rule of the road under circumstances which appeared to then and there exist. Defendant was on an arterial and reasonably assumed she had the advantage of proceeding over one approaching the highway. The deceased, because the stop sign had been misplaced, reasonably assumed he had the advantage, because of being to the right of plaintiff and therefore having the right to proceed into the intersection. The reliance placed by each on the view as he saw it was not unreasonable. Deceased was a stranger in the town. He was not aware that Wisconsin avenue was an arterial highway. Defendant was a resident of Appleton and familiar with the highway and its intersecting streets. If neither was guilty of negligence, the turning of the stop sign would excuse each for proceeding until the approach of the other car called for some preventive act on the part of the driver. The evidence indicates that both defendant and deceased were using the same degree of caution and that the collision resulted because each, while exercising such care, relied on his right of way.

Neither the action of defendant or plaintiff's deceased in entering the intersection can be held negligent. And under the evidence, the acts of defendant, after both cars were in the intersection, cannot be held to be negligent conduct.

By the Court. — Judgment reversed, cause remanded with directions to grant judgment dismissing plaintiff's complaint.