HEINECKE v. HARDWARE MUT. CASUALTY CO

An automobile owned by the plaintiff Florence Heinecke was damaged in a collision with a truck operated by the defendant Louis Anderson on April 4, 1951, at about 7 p. m. The automobile was driven by her husband. The car was insured by the Ohio Farmers Insurance Company and its policy contained a $50-deductible collision clause. The company paid all but $50 of the car damage and plaintiffs commenced this action in the municipal court of Fond du Lac county to recover the amount of said damage.

The defendant Louis Anderson, on the date of the accident, was the operator of a garage located on the west side of Highway 41, some distance south of Fond du Lac. He had operated this garage since 1919. Highway 41 ran in a northerly and southerly direction in front of his garage. To the south there was a hill known as "Hamilton hill." The distance from the garage to the top of said hill was approximately 1,700 feet. About 800 feet south of the garage was a driveway extending east from Highway 41 to a stone quarry. To the north the highway was level. The highway was paved with concrete. The weather was clear and the highway was dry.

Anderson had repaired a milk truck for a man who lived in Fond du Lac. After it was repaired he left it standing facing to the north, parallel with the highway, between the garage and some gasoline pumps. He left his own automobile, faced in the same direction, between the gasoline pumps and the highway. He and his wife had their evening meal in their home near the garage and then went to the garage where Mr. Anderson got into the truck and Mrs. Anderson got into the car. Anderson planned to drive the truck to Fond du Lac to deliver it to the owner. Mrs. Anderson was then to follow in the car and bring him back to the garage. Anderson started the truck, turned on the lights, and drove in a northeasterly direction to a point from four to eight feet from the west edge of the concrete, where he stopped. He looked to the north and saw no vehicles approaching and he looked to the south as far as the stone-quarry driveway. He saw no vehicle approaching nor did he see the lights of any vehicle. He thereupon proceeded in a northeasterly direction upon the highway and traveled in that direction a distance of approximately 85 feet. At that point the cab of his truck was pointed north in the east lane of the highway but the left rear corner of the truck had not crossed the center line when the car collided with the right rear of the truck.

The driver of the automobile testified that he was driving down the Hamilton hill at a speed of 50 to 55 miles per hour; that no cars were coming from the north and he did not see the truck until he was 200 feet away. He then saw only the blank side of the truck, which was dirty; he did not know where the truck was in relation to the center of the highway; he continued in a straight course and applied his brake. There were skid marks on the pavement for a distance of 75 or 76 feet from the point of collision. The driver estimated his speed at the moment of impact as 20 to 25 miles per hour.

Mrs. Anderson, sitting in the car, saw her husband proceed out upon the highway. She then looked for approaching traffic. She saw none coming from the north but looked back and saw the Heinecke car approaching from the south. She testified that at that time her husband was across the highway and that the Heinecke car was near the stone-quarry road. She waited for the Heinecke car to pass and saw the collision. She testified that the Heinecke car was traveling very fast, and that immediately after the collision she spoke to Mr. Heinecke and asked him if he was badly hurt and he answered that he didn't think so but guessed that he was going too fast.

The case was submitted to a jury on a special verdict and only questions as to Anderson's negligence were submitted, the parties having stipulated as to the amount of damages. The jury was asked to determine whether Anderson was negligent in respect to lookout, failure to yield the right of way, proper lighting, and management and control of the truck. The jury answered all of the questions in the negative, and judgment was entered on the special verdict. The plaintiffs took an appeal to the circuit court for Fond du Lac county, where the record made in municipal court was reviewed. The circuit court set aside the verdict of the jury, held that Anderson was negligent as a matter of law as to lookout and failure to yield the right of way, and entered judgment in favor of the plaintiffs and against the defendants for damages and costs. The defendants appealed from that judgment.

CURRIE, J. (dissenting).

In this case the defendant Anderson had a clear unobstructed view available to him of 1,700 feet of highway to the south. He proceeded to drive onto the paved portion of such highway from the west, or left, side thereof diagonally across in the path of the oncoming Heinecke car. Anderson failed to clear the center line of the pavement, but still had the left rear corner of the truck on the left side of such center line when the truck was struck by the oncoming Heinecke car.

The undisputed testimony is that the headlights of the Heinecke automobile were lighted. Nevertheless, Anderson testified that he never at any time saw the Heinecke car prior to the impact. This in my opinion constituted negligence with respect to lookout as a matter of law. It surely was the duty of Anderson at some time, before placing the truck across the highway directly in the path of the oncoming Heinecke car, to have made an observation which would have disclosed the approach of such car.

This is not a case where one attempting to enter and proceed upon a highway with a motor vehicle makes an observation and sees an approaching car and concludes that he has time to enter and get straightened around on his own side of the road without causing a collision, and a collision nevertheless occurs because of the excessive speed of the approaching vehicle. In the latter situation the issue of lookout is properly for the jury.

I would affirm the judgment for the reasons so well stated by the learned trial judge in his memorandum opinion that Anderson was causally negligent as to lookout as a matter of law.