Carlsen v. Hardware Mut. Casualty Co.

This is an appeal from a judgment, entered January 17, 1949, awarding plaintiff $1,600 damages for personal injuries, and $133.55 costs. The action was commenced on June 22, 1948.

On January 17, 1948, plaintiff was operating his automobile in an easterly direction on Highway 77, at a point about eight miles east of the city of Hayward, Sawyer county. The highway is approximately twenty-eight feet wide, the blacktop being about twenty feet, and the south half of the highway (twelve to fourteen feet) had been snow-plowed. The north half was covered with about six inches of light snow. Plaintiff saw ahead of him a truck with some lumber projecting from the rear, headed in the same direction plaintiff was proceeding, and believed from the appearance of the roadway that he could pass the truck on its right since the truck appeared to him to be standing. The area to the right of the truck appeared to be solid and part of the parkway of Club 77 (a tavern and gas station located on the south side of the road). The snow concealed a ditch in which plaintiff's car became stalled. The owner and driver of the truck was Albert Galinski.

Plaintiff walked to the Club 77 for help. One Jack Mills backed his car up to plaintiff's car, borrowed a chain from Galinski which he attached to the rear of both cars, but he was unable to pull plaintiff's car. Then a telephone truck, by chain hooked to the front of the Mills' car, both pulling west on the south half of the highway, succeeded in getting the car out of the ditch. After plaintiff's car was out, plaintiff stepped out from behind the driver's wheel of his car to the north side and proceeded to walk on the north side of the cars. He first stopped to thank, help, or pay Galinski who was unhooking the chain between plaintiff's car and the Mills' car, and then continued on to the Mills' car. When he was standing with his hand on the north door of the Mills' car trying to open the door to speak to Mr. Mills, he was struck by the car driven by the since deceased, Harvey Vincent, who was insured by the appellant Insurance Company. The time was about four o'clock in the afternoon.

The jury found the deceased, Harvey Vincent, causally negligent as to management and control and as to driving his automobile on the left or southerly side of the highway at the time of the accident. Plaintiff, Conrad Carlsen, was found causally negligent as to keeping a proper lookout for other traffic on the highway. The jury apportioned eighty per cent negligence to Vincent, and twenty per cent to Carlsen, and by reason of his injury, awarded $2,000 damages to Carlsen.

Plaintiff's motion for judgment on the verdict was granted, and defendant's motion to change the answers, or for a new trial, was denied without opinion.

Other material facts will be stated in the opinion. The issues in this case are whether there is sufficient credible evidence to support the jury's verdict, (1) that the deceased driver, Harvey Vincent, was negligent as to management and control; (2) that the deceased drove his automobile on the southerly half of the highway immediately prior to and at the time of the accident; and (3) that the plaintiff, Conrad Carlsen, was not negligent in failing to yield the right of way. They will be discussed in that order.

(1) The north half of the highway on which Vincent was supposed to be traveling was covered with from four to six inches of loose snow. There was considerable travel on this portion of the highway and there were a number of car and truck tracks in the loose snow.

Mrs. Carlsen, wife of the plaintiff, testified that Vincent came into the Club 77 after the accident and told her he had set his brakes but at that he went clear across on the other side of the road before he could stop.

Defendant's counsel objected to this testimony on the grounds that it was a conversation with a deceased person, and that Mrs. Carlsen was incompetent to testify on that subject. Defendant's brief cites no authorities for this proposition. The trial judge properly held that the testimony was admissible and should not be excluded as a transaction with a deceased person. The witness was not a party to the action and secured no direct benefits therefrom. See Nolan v. StandardFire Ins. Co. (1943), 243 Wis. 30, 9 N.W.2d 74.

The deceased admitted to Mrs. Carlsen that he struck plaintiff. the jury had a right to believe the testimony of the plaintiff that at the time he was hit he was somewhere between six or eight feet south of the center line (which will be discussed further under (2)).

The jury had sufficient evidence to conclude that the deceased left his lane of travel on the north side of the road, crossed the center line to the point where plaintiff was struck and, therefore, was negligent in the management and control of his automobile. The jury's finding in this respect has been approved by the learned circuit judge and cannot be disturbed on appeal. Rebholz v. Wettengel (1933), 211 Wis. 285, 289,248 N.W. 109.

The deceased person is entitled to the presumption of due care. However, this presumption disappears when evidence is introduced from which a jury might properly find negligence on the part of the deceased. See Smith v. Green Bay (1937),223 Wis. 427, 271 N.W. 28.

(2) Plaintiff testified that at the time he was hit he was six or eight feet south of the center line, in the act of opening the door of Mills' car. This testimony is amply supported by the evidence that plaintiff's car, the Mills' car, and the truck were on the south half of the highway, with their south wheels on the parking lot of Club 77, after plaintiff's car was pulled out of the ditch. The north wheels of the Mills' car were not far out on the black-top. Plaintiff would necessarily be in close proximity to the Mills' car in the process of opening the door, and the deceased had to operate his automobile on the south side of the highway in order to strike plaintiff. The evidence warrants the jury's finding.

(3) We cannot agree with defendant's contention that plaintiff was a pedestrian. The cars were lined up along the south shoulder of the road and an attempt was being made to unhook the chains and ropes between the vehicles so that everyone could leave the scene. Plaintiff had stepped out of his car and had only walked a distance of about eight feet to the Mills' car where he was about to open the door, and this obviously is not sufficient to make him a pedestrian and subject to the laws and regulations relating to pedestrians. The evidence related under (2) does not indicate that plaintiff violated the safety statutes by placing himself in a dangerous position. The jury was correct in finding that he was not negligent in failing to yield the right of way.

We have carefully considered all the facts and hold that there is competent and credible evidence to support the jury's findings. Consequently, these findings, which have been approved by the trial court, cannot be set aside on appeal. Zindellv. Central Mut. Ins. Co. (1936), 222 Wis. 575,269 N.W. 327.

By the Court. — Judgment affirmed.