Abbott v. Truck Ins. Exchange Co.

• Decision Date: 31 January 1967
• Citation: 148 N.W.2d 116,33 Wis.2d 671
• Parties: Douglas ABBOTT, Plaintiff-Appellant, v. TRUCK INSURANCE EXCHANGE CO., a foreign corporation, Lake States Truck Rental Co., and Frederick W. Frieders, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 116

148 N.W.2d 116

33 Wis.2d 671

Douglas ABBOTT, Plaintiff-Appellant, v. TRUCK INSURANCE EXCHANGE CO., a foreign corporation, Lake

States Truck Rental Co., and Frederick W.

Frieders, Defendants-Respondents.

Supreme Court of Wisconsin.

Jan. 31, 1967.

Amidon & Smith, Hartford, Charles M. Hanratty, Milwaukee, James A. Koester, Milwaukee, of counsel, for appellant.

Schlotthauer, Jenswold & Studt, Madison, for respondents.

HALLOWS, Justice.

The plaintiff claims the trial court erred in giving an instruction on skidding, in admitting a statement given by the plaintiff while in the hospital, in refusing to instruct on the position of the defendant's tractor-trailer on the highway, in refusing to instruct that a representative of the insurance company which insured the tractor-trailer the plaintiff was driving was not representing his insurance company, and finally in limiting the plaintiff's cross-examination of the defendant in respect to statements made in his adverse examination.

The accident happened on the morning of February 1, 1963, on Highway 41 immediately north of the Des Plaines River bridge in Lake county, Illinois. The defendant was driving a tractor-trailer loaded with 50-pound bags of chemicals. The total weight of the loaded unit was about 58,000 pounds and the trailer was 40 feet long. The plaintiff was driving an empty tractor-trailer milk-tank unit weighing about 22,000 pounds. Both drivers were returning from Chicago to Wisconsin. The roadway from Chicago to the Des Plaines River bridge was free of ice, snow and moisture, but the bridge area and possibly the roadway north to the place of impact was icy and slippery. In the area of the impact, Highway 41 is a four-lane highway divided by a median strip and running generally north and south, the northbound lanes totaling approximately 32 feet in width. At a point about two-tenths of a mile south of the Des Plaines River bridge Highway 41 runs west and northwest and then at the bridge curves to the north.

When the defendant was 75 or 100 yards from the bridge he saw a vehicle ahead of him 'swerved a little on the bridge, enough that it alerted me, and continued on its regular course.' Defendant took his foot off the accelerator and coasted about 20 yards upgrade toward the bridge and slowed down rapidly. He approached the bridge at 30 to 40 miles per hour and accelerated. While on the bridge his vehicle suddenly began to swerve on the ice, causing it to go out of control. His vehicle proceeded down the road 150 or 200 feet out of control and jacknifed, and came to rest on the median strip with the tractor facing west and the trailer parallel to the highway. He testified that either all of his unit was on the median or possibly a couple of feet of the trailer was in the left northbound lane. The defendant got out of his cab and went to the rear of his trailer and while placing a fusee some distance behind the unit he saw the plaintiff coming over the bridge. This time interval was estimated to be about one minute.

The plaintiff testified he did not see the stalled vehicle until he was halfway across the bridge because of the curve in the road and overhanging trees, and consequently was unaware the bridge was slippery and icy. He applied his brakes 'on the strong side' and released them immediately when he was aware of the icy roadway. His vehicle too started to jackknife and continued out of control down the roadway at 40 to 45 miles per hour. The plaintiff avoided the rear part of the stalled trailer but then his trailer lunged to the left into the right side of the defendant's trailer. The plaintiff was thrown out of his cab to the pavement and his trailer overrode the tractor, plowed into the side of the defendant's trailer and caught on fire.

There is a dispute in the evidence as to the position of the defendant's trailer. The plaintiff testified at the trial that the defendant's trailer extended across the entire left lane and three to four feet into the right northbound lane. After the accident, the defendant's trailer was parallel to the highway but off of it. The defendant testified he did not think his trailer moved after the impact. The police officer who investigated the accident testified it probably moved two feet. Both drivers testified the impact was 150 to 200 feet north of the bridge. The police officer testified that measurements placed the vehicles 340 feet north of the north end of the bridge which itself was about 190 feet in length.

Plaintiff strenuously argues the Wisconsin Civil Jury Instruction No. 1280 on skidding is in effect an instruction on an unavoidable accident and the giving of such an instruction was prejudicial and reversible error. It is also claimed the facts do not present a proper case in any event for an instruction on skidding because the defendant's vehicle was at rest at the time of impact. The plaintiff claims Wisconsin is in accord with a modern trend to abolish the giving of an unavoidable accident instruction because the instruction is prejudicial to the plaintiff's case, overemphasizes the defendant's case, is confusing and misleading to the jury and in any event unnecessary. The plaintiff cites and analyzes many cases for his position and the problem is considered in detail in Anno., Unavoidable Accident Instruction, 65 A.L.R.2d 12.

This court has not categorically said or held, as has California in Butigan v. Yellow Cab Company (1958), 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1, that it is error as a matter of law to give an unavoidable accident instruction. This court has held, however, on the facts of a particular case it was error to give such an instruction when the evidence would not support a finding that both parties to the accident were free of negligence or if there was no evidence the accident happened without negligence. Mittelstadt v. Hartford Accident & Indemnity Company (1957), 2 Wis.2d 78, 85 S.W.2d 793; Calhoun v. Lasinski (1949), 255 Wis. 189, 38 N.W.2d 353. In Van Matre v. Milwaukee E.R. & T. Co. (1955), 268 Wis. 399, 67 N.W.2d 831, we stated in respect to an unavoidable accident inquiry in the verdict, 'There may be negligence cases when the inclusion of such a question would be advisable but we are of the opinion that such cases would be rare.' 268 Wis. at p. 404, 67 N.W.2d at p. 833.

While it may be argued the skidding instruction is in part a special application of the unavoidable accident doctrine, it is not synonymous with such an instruction and has long been used in Wisconsin. The statement in the instruction to the effect that skidding per se is not negligence but must be proved to be the result of negligence preceding the skidding or of negligence during the skidding was used in Linden v. Miller (1920), 172 Wis. 20, 177 N.W. 909, 12 A.L.R. 665; Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740; and Ryan v. Cameron (1955), 270 Wis. 325, 71 N.W.2d 408. In Poole v. State Farm Mut. Automobile Ins. Co. (1959), 7 Wis.2d 65, 95 N.W.2d 799, we discussed many cases stating or holding the mere fact of skidding will not support an inference of negligence. These cases expressed the idea it is a commonly known fact that cars may skid on greasy and slippery roads without fault because of the manner of handling the car or because the car was driven on the greasy or slippery road. Churchill v. Brock (1953), 264 Wis. 23, 58 N.W.2d 290; Voigt v. Voigt (1964), 22 Wis.2d 573, 126 N.W.2d 543. We think Wisconsin Civil Jury Instruction No. 1280, based as it is on Linden v. Miller, supra; Zeinemann v. Gasser (1947), 251 Wis. 238, 29 N.W.2d 49; Coenen v. Van Handel (1955), 269 Wis. 6, 68 N.W.2d 435; and Van Matre v. Milwaukee E.R. & T. Co., supra, is a correct statement of the law and should be used in proper cases.

But the plaintiff argues the facts in this case do not support the use of the instruction because there was no evidence the accident resulted from anything other than the defendant's negligence. The defendant was negligent, it is claimed, because he was alerted to the icy road condition by the swerving of the vehicle ahead of him and did not apply...