Wagner v. Home Mut. Casualty Co.

262 Wis. 673 (1953)

WAGNER, Appellant, vs. HOME MUTUAL CASUALTY COMPANY, Respondent.

Supreme Court of Wisconsin.

December 2, 1952.

January 6, 1953.

*675 Frank L. Morrow of Eau Claire, for the appellant.

Donald L. Farr of Eau Claire, for the respondent.

MARTIN, J.

The only question on this appeal is whether the trial court erred in granting defendant's motion for a directed verdict.

There is no evidence of excessive speed on the part of either driver.

Considering the evidence most favorable to the plaintiff, Kuhn testified that he did not see the Wagner car until the moment the vehicles collided. Wagner stated that he saw the Kuhn car when he was about seventy-five feet west of the intersection and the Kuhn car was approximately eighty feet south of it. He thought the other driver would slow down or stop and that he would have time enough to get across; so he paid no more attention to it until the collision was imminent. There is nothing in the evidence, however, to show that the Kuhn car gave any indication of slowing or stopping; plaintiff testified he judged Kuhn's speed as greater than his own at the time he made his only observation.

Furthermore, defendant's insured had the right of way, sec. 85.18 (1), Stats., and if anyone would have had reason to believe that the other would yield, it was Kuhn. In the exercise of ordinary care, plaintiff, having observed the Kuhn car approaching the intersection, should have had his car under such control as to be able to yield the right of way; he was negligent in relying on any assumption that the other driver would stop and allow him to pass.

In our opinion the trial court could reach no other conclusion than that both drivers were guilty of negligent lookout as a matter of law. The negligence of each was of the same *676 kind and character, and a verdict finding anything other than that plaintiff's negligence was at least as great as Kuhn's in respect to lookout would have been based on speculation. The trial court properly granted the motion for direction of the verdict in defendant's favor.

By the Court.Judgment affirmed.