On April 30, 1956, Anna Greene brought action against Farmers Mutual Automobile Insurance Company and Beatrice Ann Harck. Mrs. Greene sought to recover damages for the death of her adult son, Merritt Greene, with whom she lived. Merritt Greene was killed October 28, 1955, when struck by Miss Harck's automobile.
The accident occurred at about 7 p. m. on U.S. Highway 12 in a rural area 10 miles north of Tomah. Miss Harck was driving south and Mr. Greene was crossing Highway 12 on foot from east to west.
Miss Harck testified that she was driving between 45 and 50 miles per hour; that her headlights were on bright; that she first saw a light-colored paper sack and later saw Mr. Greene and saw that he was carrying the sack; that she first saw Mr. Greene when he was about 200 feet ahead of her in her lane of travel and walking slowly across the road; that there was no other traffic on the highway at the time; that she took her foot off the gas and turned to the left lane; that she believed that all of her car was in the left lane when it hit Mr. Greene.
Miss Harck's mother was a passenger in the Harck car and the only other eyewitness. She testified to the same effect as her daughter and further that after Miss Harck turned to the left lane, Mr. Greene turned around to his right and started to walk to the east and then the car struck him.
The investigating officer noted on his report:
"The driver stated the pedestrian walked across the highway and seemed to change his mind and turned around suddenly in the opposite direction. The driver said she swerved to the left to avoid him but struck him with the right front of her car."
The pavement was 22 feet wide and there was a center line. Mr. Greene was crossing at or near the intersection of County Trunk E and Highway 12. There was no marked or unmarked crosswalk. Highway 12 is straight for some 1,200 to 1,400 feet north of the intersection. After the accident Mr. Greene's body was lying at the east edge of the pavement. The debris of a sack of groceries which he had evidently been carrying was scattered in the east lane of the highway starting about 100 feet north of where his body was lying. The pavement was dry and there were no skid marks. Miss Harck testified that she did not know whether she had applied her brakes prior to hitting Mr. Greene.
The jury found that Miss Harck was not negligent with respect to speed, lookout, or management and control; those were the only questions submitted as to negligence on her part; the court found as a matter of law that Mr. Greene was negligent with respect to yielding the right of way and the jury found that such negligence was causal; the jury also found that Mr. Greene was causally negligent with respect to lookout. Judgment dismissing the action was entered December 20, 1957, and plaintiff appealed.
FAIRCHILD, J.
Plaintiff seeks a new trial. She claims that certain instructions which she requested should have been given, that the court should not have found deceased negligent as a matter of law, and that the court abused its discretion in denying a new trial in the interest of justice.
1. Instructions. Plaintiff requested an instruction on the duty to reduce speed when passing pedestrians. Plaintiff relied on the portion of sec. 85.40 (2) (b), Stats. 1955, which provided: "The operator of every vehicle shall, consistent with the requirements of paragraph (a), operate at an appropriate reduced speed . . . when passing school children or other pedestrians. . . ." The circuit court made no reference to the provision just quoted, but did quote sec. 85.40 (2) (a), providing: "No person shall operate a vehicle at a speed greater than is reasonable and prudent under conditions and having regard for the actual and potential hazards then existing and the speed of the vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and using due care." The court said: "Any rate of speed is unreasonable if it is greater than a reasonable and prudent person would use under the same or similar circumstances." A question has been raised whether Miss Harck was "passing" the pedestrian, who was moving in a course at a right angle with hers. If she was "passing" him, and if paragraph (b) was therefore applicable, the jury would be required to determine what an "appropriate" reduced speed was. Clearly the jury must have understood Mr. Greene's presence as one of the conditions and circumstances which the court told them they were to consider in determining whether Miss Harck's speed was reasonable and proper. We would have difficulty in distinguishing between a standard of a "reasonable and prudent" speed, having regard for the presence of the pedestrian, and a standard of an "appropriate reduced speed." Under the circumstances of this case we conclude that omission of the words of paragraph (b) was not prejudicial error.
Plaintiff requested an instruction, based upon sec. 85.15 (1), Stats. 1955, providing: "Upon all highways of sufficient width, except upon one-way highways, the operator of a vehicle shall operate the same upon the right half of the roadway . . . unless it is impractical to travel on such side of the roadway. . . ." There was no claim made nor evidence tending to show that Miss Harck drove in the left lane except when she turned into it because she saw Mr. Greene in her right-hand lane.
Plaintiff requested an instruction that deceased was presumed to have exercised due care. Plaintiff concedes that this presumption disappears when evidence sufficient to support a finding of negligence on his part is introduced. Here the testimony of Miss Harck and her mother was sufficient.
2. Deceased failed to yield the right of way. There being no crosswalk, Mr. Greene had an absolute duty to yield the right of way. Sec. 85.44 (4), Stats. 1955; Post v. Thomas (1942), 240 Wis. 519, 525, 3 N.W.2d 344. His failure is beyond dispute. He could have seen Miss Harck's headlights at all times while she was traveling the 1,200 feet before the point of impact. At 50 miles per hour she would have taken about sixteen seconds to traverse this distance.
3. Denial of a new trial. There is no basis for saying that it was an abuse of discretion to deny a new trial in the interest of justice. The trial court's view of the matter was expressed at the hearing on motions after verdict. It was the court's opinion that under the circumstances the jury could not have found Mr. Greene less than 50 per cent negligent.
By the Court. — Judgment affirmed.
BROWN, J., took no part.