Miles v. General Casualty Co. , 254 Wis. 278 ( 1949 )

I concede that both sections85.06 (2) (d), Stats., and motor vehicle department order 205, establish a safety rule in respect of flares to be set out in case a truck is left standing upon any traveled portion of a highway outside the corporate limits of a city or village. I do not consider, however, that the failure of the driver of the Goodrich truck to set flares was a cause of the death of plaintiff's intestate. In Wilmet v. Chicago N.W. R. Co.233 Wis. 335, 345, 289 N.W. 815, this court said:

"Violation of a regulatory statute by one upon whom a duty is imposed, although the violation may be an act of negligence, does not give rise to a cause of action for an invasion of an interest of another unless the interest invaded is one which the enactment is intended to protect."

See also on this point Restatement, 2 Torts, p. 752, sec. 286. It is plain to me that the purpose of the statute and the safety order is to protect the traveling public against running into the parked vehicle. In this case nobody ran into the Goodrich truck and it seems to me impossible to say that the failure to put out flares is a factor in this accident. The negligent operation of his car by Kern plus the presence of the wrecker on the highway were two factual causes of the accident. Since the court has held that plaintiff has not preserved his rights as to, the wrecker operated by Polzer I shall not pursue the inquiry into Polzer's negligence or its causal relation to the accident and simply express the view that defendant Goodrich was not, by the mere failure to put out flares, responsible for the presence of the wrecker or the manner of its operation and conclude that the case is governed on cause by Schultz v. Brogan,251 Wis. 390, 29 N.W.2d 719, and by Johnson v. Armitage,253 Wis. 300, 34 N.W.2d 118.

I am authorized to state that Mr. Justice HUGHES concurs in this opinion.