Eberdt v. Muller

The appellants have filed a motion for rehearing. In their brief on the motion counsel find fault with the opinion in forty-two separate respects by actual count. One of their complaints we find justified. That one is the interpretation given in the opinion of sec. 85.10(22), Stats., which reads:

"Intersection. The area embraced within the prolongation of the lateral curb lines or, if none, then within the lateral boundary lines of two or more highways which join one another at an angle, whether or not one such highway crosses the other."

The statute should be interpreted as fixing the intersection as bounded by a quadrilateral made by the north line of the county trunk, a line extending the south line of the county trunk across the town road, and lines extending the two lateral lines of the town road across the county trunk. This follows from the language of the statute itself, not because as argued by appellants, it is required by Weiberg v. Kellogg,188 Wis. 97, 205 N.W. 896. The Weiberg Case does not construe the statute, and therefore does not control its interpretation, as it was decided in 1925 and the statute was enacted by sec. 3, ch. 454, Laws of 1929.

[EDITORS' NOTE: THE DRAWING IS ELECTRONICALLY NON-TRANSFERRABLE.]

Although the interpretation of sec. 85.10(22), Stats., as it stands must be as above stated, we conclude that sec.85.17(2), relating to left turns at intersections, is impossible of application in situations such as were here involved. Examination of the accompanying plat will roughly indicate that situation, although it is not to scale, and will indicate it more clearly than is possible to describe it by words.

The lateral edges of the portion of the left lead of the town road surfaced for travel follow curved lines not parallel and diverge so that the prolongation — to follow the language of sec. 85.10(22) — of the lateral lines of the two, highways form a quadrilateral with the north and south sides parallel and seventy feet long at the south and one hundred eighty feet at the north. The other two sides are diverging curves seventy feet apart at the south and one hundred eighty feet at the north. Taking the center of the intersection as the point where medial lines of the quadrilateral intersect, the center of the intersection would be one hundred forty feet northwest of the west apex of the grass plot. To pass to the left of the center of the intersection as thus fixed as required by sec. 85.17(2) the truck would have to travel one hundred twenty feet on the deceased's half of the county trunk road. These figures are as approximate as one may judge them by applying the scale to the map in evidence and judging as nearly as may be the extension of the curves of the lateral edges of the town road. A driver turning left from the town road could not even approximate the center of the intersection as declared by sec. 85.10(22). An attempt of a driver to conform to sec. 85.17(2) in turning left would create a situation of imminent danger from which it would be all but impossible for the drivers to escape. The collision occurred about seventy feet from the west point of the apex of the grass plot and about eighty feet east of the center of the intersection as fixed by sec. 85.10(22).

The court instructed the jury in the language of sec. 85.17(2), Stats., as to passing to the left of the center of the intersection. We do not perceive that this was prejudicial to the defendants. The instruction was in the defendants' favor as following it would permit the truck driver to invade the south of the county trunk road for a much greater distance than he had right to do in the exercise of ordinary care. His duty manifestly was under the circumstances to keep to his half of the town road until he reached the south line of the traveled part of the county trunk road and then either stop or pass as directly onto the north half of the county trunk as he reasonably might. We suggest that it is important that sec. 85.10(22) and sec. 85.17(2) should by amendment be so harmonized as to minimize as much as possible the hazards incident to left turns at intersections.

While the opinion makes the erroneous statement in connection with fixing the point at which the truck entered the intersection, it leaves unaffected the distance the truck driver could see at this point, which was the fact under consideration bearing upon the correctness of the judgment appealed.

Another mistake in the opinion of which complaint is made is the use of the word "south" when the word "west" was obviously meant, which escaped notice until the advance sheets of the Northwestern Reporter were issued when the mistake was promptly corrected both for the bound volume of the Reporter and the Wisconsin Reports. Counsel assert that the opinion's statements of distance are erroneous and lay this to use through a mistake in the printed case, but corrected in the brief, where the dimensions of a map to scale are erroneously stated. But all distances stated in the opinion that are based on our measurements were based on the map itself and are in accordance with that map. No other criticisms of the opinion made in appellant's brief seem to warrant mention. They are apparently based largely upon the erroneous assumption that the court should have stated all the evidence bearing on a given point instead of stating such as seemed to the court sufficient to warrant the findings of the jury on that point, and on the assumption that the jury were bound to accept the testimony of the truck driver wherever it was not disputed by any other witness. We considered that the jury might discredit the witness for reasons stated in the opinion which seem to us sound notwithstanding that counsel does not so consider them.

By the Court. — The motion for rehearing is denied, but because of misinterpretation in the opinion of sec. 85.10(22), Stats., which we have herein corrected, no costs will be imposed.