Frankland v. De Broux , 251 Wis. 210 ( 1947 )

Action commenced July 17, 1946, by John Frankland as administrator of the estate of Jessie J. Frankland, deceased, plaintiff, against Wilbert De Broux and Farmers Mutual Automobile Insurance Company, a Wisconsin insurance corporation, defendants and appellants, and Hartford Accident Indemnity Company, a foreign insurance company, and Emil Bauman, impleaded defendants and respondents, to recover damages for the death of Jessie J. Frankland, caused by an automobile collision. The defendants in their cross complaint asked for contribution from the impleaded defendants in the event the plaintiff recovered. The case was tried to the court and a jury.

At the close of the evidence the trial judge directed a verdict in favor of the impleaded defendants and respondents, and against the defendants and appellants on the cross issues between those parties on the ground that the evidence did not support any finding of negligence on the part of Emil Bauman. The trial judge, at the close of the evidence, also found as a matter of law, (1) that the defendant Wilbert De Broux was negligent in the operation of his automobile with respect to, (a) speed; (b) lookout; (c) management and control; and (d) traveling on the wrong side of the highway; and (2) that the said negligence of defendant Wilbert De Broux in each of these respects proximately caused the collisions; and (3) that the decedent, Jessie J. Frankland, did not assume the risk incident to the negligence of defendant Wilbert De Broux; and (4) that the said causal negligence of defendant Wilbert De Broux in the respects so found by the court was not the result of lack of skill or judgment on the part of Wilbert De Broux. The trial judge submitted to the jury for its determination only the question of damages.

Upon the findings made by the trial judge, the determination of damages by the jury, and the directed verdict in favor of impleaded defendants on the cross issues between impleaded defendants and defendants, the court granted judgment, (a) in favor of plaintiff and against defendants Wilbert De Broux and Farmers Mutual Automobile Insurance Company for the amount of damages assessed by the jury with costs, and (b) dismissed upon the merits the cross complaint of defendants against the impleaded defendants.

Appellants, Wilbert De Broux and Farmers Mutual Automobile Insurance Company, have appealed only from that part of the judgment which dismisses their cross complaint against Hartford Accident Indemnity Company and Emil Bauman, impleaded defendants and respondents.

Two separate and distinct collisions between motor vehicles are involved. The collisions occurred on State Trunk Highway 29 about one and one-half miles west of the village of Marathon, in Marathon county, on June 10, 1946, at about 11 p.m. Highway 29 runs in a general easterly and westerly direction and has a concrete roadway twenty feet in width with an eight to ten-inch extension known as a "lip." There were grass shoulders on each side of the concrete six feet wide. At the place of the collisions Highway 29 is straight, and is straight for several miles in each direction. The collisions occurred on the easterly slope of a hill on Highway 29, which slope is between one half and three fourths of a mile long. The westerly slope of the hill is about twelve hundred feet long. The very top of the crest of the hill is a rounding slope covering about fifty feet, and in four hundred feet over the crest of the hill, measuring two hundred feet to the east and two hundred feet to the west of the crest, there is a difference in elevation of 3.4 feet on the east and 2.5 feet on the west. The grade lessens farther away from the crest of the hill.

Appellant De Broux was driving a Chevrolet sport sedan in an easterly direction on Highway 29, and decedent, Jessie J. Frankland, was riding with him as a guest passenger. One Harvey Kuntz was driving a Plymouth coach in the same direction but ahead of appellant's car. Respondent Emil Bauman was driving a large tractor-trailer of Albrent Freight Storage Company in a westerly direction, carrying a load of freight weighing about five tons.

While driving up the westerly slope of the hill on Highway 29 appellant De Broux was not aware of the Kuntz car ahead of him and did not see it until he had reached or passed over the crest of the hill, at which time he was traveling between forty and forty-five miles an hour and the Kuntz car was traveling about twenty-five miles an hour. He did not observe the Kuntz car until he was close to it. He testified as follows, concerning the action taken by him as soon as he saw the Kuntz car:

"I applied my brakes very hard with the intention of stopping, but nothing happened. And the car went — it went more as if it — speeded up rather than started to stop. I know that isn't possible, but that's the way it seemed to me; and then it started to slide and lead right off to the left and forward."

Appellant did not know what distance he was from the crest of the hill when he struck the Kuntz car nor what the position of his car was with reference to the Kuntz car at the time they struck. He did not see the lights of the approaching tractor-trailer until he had struck the Kuntz car, and does not remember what happened after striking the Kuntz car and then seeing the lights of the tractor-trailer.

Kuntz did not know the De Broux car was following him until it collided with the rear of his car. As the Kuntz and De Broux cars came over the crest of the hill they were both on their proper side of the roadway, and the Kuntz car at all times thereafter remained on its side of the roadway. Appellant De Broux's car ran into the rear of the Kuntz car as the two cars were traveling down the east slope of the hill, and the tractor-trailer was traveling westerly up that slope of the hill about thirty miles per hour. In the collision between appellant's car and the Kuntz car a substantial part of the left rear fender of the Kuntz car was sheared or torn off, the right half of the trunk cover at the rear of the Kuntz car was damaged, and marks of contact of these two vehicles were left on the bumper of the Kuntz car on the extreme right and left ends of the rear bumper.

Kuntz stopped his car as soon as he could after being struck and brought it to a complete stop one hundred eighty feet east of the crest of the hill. He testified his car was struck from the rear by appellant's car and almost immediately thereafter there was a collision between appellant's car and the tractor-trailer.

Respondent Bauman, tractor-trailer driver, saw the Kuntz car as it came over the crest of the hill and also the appellant's car as it came over the crest of the hill. He observed the rear car was traveling faster than the head car, He turned his tractor to the right onto the shoulder of the highway, and at the point of collision, which was about one hundred twenty-five feet east of the crest of the hill, the right wheels of the tractor-trailer were two feet on the shoulder on the north side of the highway. Respondent Bauman testified appellant's car zigzagged when it was about twenty-five feet from the tractor-trailer, crossing to the north of the center of the highway. The bumper of appellant's car struck the left front tire of the tractor, causing the tractor-trailer to go into the ditch on the north side of the highway and tip over. Appellant's car came to a stop twenty feet west of the Kuntz car, which would be about one hundred sixty feet east of the crest of the hill.

It was during these two collisions that decedent was injured, which injury caused her death. The inquiry here is whether, after giving the testimony the most favorable construction it will bear in appellants' favor, there is credible evidence from which a reasonable inference can be drawn in support of the case. Boyce v.Independent Cleaners, Inc. (1932) 206 Wis. 521,240 N.W. 132; Kortendick v. Waterford (1908), 135 Wis. 77,115 N.W. 331; Mahar v. Montello Granite Co. (1911)146 Wis. 46, 130 N.W. 949; Reiland v. Wisconsin Valley Electric Co. (1930) 202 Wis. 499, 233 N.W. 91. This requires an examination of the evidence.

Appellants contend the facts show Bauman had plenty of time and opportunity to avoid the collision. To sustain this position they quote from the adverse examination of respondent Bauman that the accident happened about four hundred to four hundred fifty feet east of the crest of the hill. The testimony on the adverse examination was given prior to the time he made an examination of the premises, and at the trial he testified the collision occurred between one hundred and one hundred fifty feet east of the crest of the hill, which is corroborated by the testimony of Nienow, the traffic officer, who testified the collision happened one hundred twenty-five feet east of the crest of the hill. The debris from the collision was at this point, and the De Broux car was stopped not more than one hundred sixty feet east of the crest of the hill.

Appellants argue that even though one has the right of way he is not justified in recklessly plunging ahead under all circumstances, citing Zutter v. O'Connell (1930), 200 Wis. 601,229 N.W. 74; Glatz v. Kroeger Bros. Co. (1919)168 Wis. 635, 170 N.W. 934; Rebholz v. Wettengel (1933),211 Wis. 285, 248 N.W. 109.

Respondents contend the reckless and negligent conduct of De Broux created an emergency which required practically instantaneous action on the part of Bauman in making and executing his decision, thereby exonerating him from negligence in the management and control of his truck.

Appellants rely on Zastrow v. Schaumburger (1932),210 Wis. 116, 245 N.W. 202; Rebholz v. Wettengel, supra; andVolland v. McGee (1941), 238 Wis. 598, 300 N.W. 506, to sustain their position that it is a question of fact for the jury whether the circumstances here constituted causal negligence on the part of Bauman.

It is undisputed that De Broux was guilty of negligence with respect to, (a) speed; (b) lookout; (c) management and control; and (4) traveling on the wrong side of the highway, but it is argued that in spite of this Bauman was guilty of negligence in the management and operation of his truck. It is argued that he could have stopped his truck prior to the time of the collision with the De Broux car and that while the truck was two feet on the shoulder he could have turned farther to the right as the shoulder was six feet wide.

The soundness of these contentions depends upon whether Bauman had sufficient time to make a decision or whether he was required to take instantaneous action. The burden of proof was on the appellants to establish negligence on the part of Bauman. De Broux did not see the lights of the tractor-trailer until after he had struck the Kuntz car and did not remember what happened after that. Kuntz testified his car was struck and almost immediately thereafter there was a collision between the De Broux car and the tractor-trailer. Bauman testified De Broux's car zigzagged when it was about twenty-five feet from the tractor-trailer, crossing to the north of the center of the highway where the collision occurred. Bauman had a right to assume the De Broux car would remain on its proper side of the highway until such time as it invaded Bauman's lane of travel. The fact Bauman saw the De Broux car when it came over the crest of the hill, at which time he was about three hundred feet from it, does not charge him with knowledge that the De Broux car was going to invade his right of way until such time as the De Broux car actually began to invade it.

De Broux was traveling forty to forty-five miles an hour just before he struck the Kuntz car and he swerved to the left immediately after striking it. Nothing in the argument as to the distances covered by the De Broux car and the tractor-trailer disproves the fact that the two collisions were almost instantaneous, and the physical facts show the De Broux car was on the right-hand side of the highway just before it struck the tractor-trailer. This clearly distinguishes the present case from the Rebholz Case, supra, and other cases relied on by appellants and brings it under the emergency rule as held by this court in DeKeyser v. Milwaukee AutomobileIns. Co. (1941) 236 Wis. 419, 295 N.W. 755; School v.Milwaukee Automobile Ins. Co. (1940) 234 Wis. 332,291 N.W. 311; Driessen v. Moder (1940), 233 Wis. 416,289 N.W. 689; Schwab v. Martin (1938), 228 Wis. 45,279 N.W. 699. Bauman was confronted with an emergency created by the plaintiff, to which no act on his part contributed. He cannot be charged with negligence as to control merely because he did not stop his truck if he could have stopped it, or did not turn farther to the right if this was possible, when he took the course which on the spur of the moment seemed to be the only thing he could do to avoid the impending collision.

We conclude there was no causal negligence on the part of the respondent Bauman as a matter of law and the trial court properly dismissed appellants' cross complaint.

By the Court. — Judgment affirmed.