Baker v. Herman Mut. Ins. Co.

• Decision Date: 30 October 1962
• Citation: 117 N.W.2d 725,17 Wis.2d 597
• Parties: Ronald BAKER, by B. F. Van Hollen, his gdn. ad litem, et al., Plaintiffs-Respondents, v. HERMAN MUTUAL INS. CO., Appellant, Howard Moland et al., d/b/a Moland Brothers Trucking Co., et al., Defendants-Respondents. (Two notices of appeal.)
• Court: Wisconsin Supreme Court

Page 725

117 N.W.2d 725

17 Wis.2d 597

Ronald BAKER, by B. F. Van Hollen, his gdn. ad litem, et al., Plaintiffs-Respondents, v. HERMAN MUTUAL INS. CO., Appellant Howard Moland et al., d/b/a Moland Brothers Trucking Co., et al., Defendants-Respondents. (Two notices of appeal.)

Supreme Court of Wisconsin.

Oct. 30, 1962.

Edward M. Conley, Rice Lake, for appellant.

Douglas, Omernik & Bitney, Spooner, for defendant-respondent.

Cameron, Cameron & Shervey, Robert O. Weisel, Rice Lake, for plaintiffs-respondents.

CURRIE, Justice.

Appellant Herman Mutual raises these issues on this appeal:

(1) Did the trial court err in directing a verdict in favor of Moland Brothers and Carriers and in dismissing appellant's cross-complaint for contribution?

(2) Did the trial court err in failing to find plaintiff Ronald Baker negligent as a matter of law?

(3) Should appellant be granted a new trial in the interest of justice?

Direction of Verdict

Appellant contends that the trial court erred in directing a verdict in favor of Moland Brothers and Carriers because the jury could reasonably infer from the evidence that Brown was negligent with respect to speed. Appellant does not argue that Brown was negligent in any other respect.

At the time of the accident, Brown was driving in a southerly direction on U. S. Highway 53 and Zaloudek was driving his car in an easterly direction on County Trunk Highway D. Highway 53 is an arterial highway with a posted speed limit of 40 miles per hour at the intersection; an arterial stop sign is located near the south edge of the traveled portion of Highway D just west of the west line of the intersection of these two highways.

Since Zaloudek and Brown were killed in the accident, Ronald Baker was the only eye witness. He testified as follows: Shortly before the accident Zaloudek and Baker had stopped at a restaurant in Sarona. After leaving the restaurant, Zaloudek drove at a speed of 20 miles per hour but, as they approached Highway 53, reduced his speed to 10 miles per hour. Baker did not know how far the arterial stop sign was set back from the intersection. Nevertheless, when he saw that Zaloudek was not going to stop at this sign, he did not have time to protest before the collision occurred. Baker estimated that two seconds elapsed from the time the car passed the stop sign to point of impact. The Zaloudek car rolled into the intersection at a speed of 10 miles per hour.

From the damage done to the truck, Moland Brothers' head mechanic testified that the place of impact on the truck was about three inches behind the tractor's right-front wheel. The traffic officer who investigated the accident found a skid mark about a foot long on the pavement which, in his opinion, established the point of impact in the intersection. This point was 13 1/2 feet east of the west line of the intersection. An exhibit consisting of a scale drawing of the accident shows a distance of approximately 37 1/2 feet from the stop sign to this point of impact.

After the accident the Chevrolet was found 42 feet five inches south of the skid mark on the pavement and the truck was 270 feet south of this mark. Before coming to rest by jackknifing across the highway, the truck, which weighed approximately 57,540 pounds at the time, snapped a utility pole guy wire and went onto the lawn of a house located southwest of the intersection where it sheared a tree nearly four inches in diameter and demolished a parked Ford Ranchero automobile.

Moland Brothers' head mechanic, testifying as an expert, stated that the small skid mark on the pavement might have been caused either by the impact of the car in forcing the wheels on the dummy axle against the driving wheels of the tractor or by application of the brakes. He expressed the opinion that the truck's air brakes did not lock until it came to rest despite the truck's loss of an air tank while still in motion. The brakes would lock automatically within seconds of such a break in the system causing loss of air pressure.

Appellant argues that the 270 feet the truck traveled after the impact, together with the damage it did to the guy wire, tree, and Ford automobile, give rise to an inference of speed in excess of 40 miles per hour. Nevertheless, we take judicial notice of the fact that just prior to the collision the truck had a momentum equal to the product of its mass and velocity. 1 Collier's Encyclopedia (1960), 'Analytical Mechanics' p. 587. Cf. Rich Hill Coal Co. et al. v. Bashore (1939), 334 Pa. 449, 491, 7 A.2d 302; American Road-Machine Co. v. Pennock & Sharp Co. (D.C.Pa.1890), 45 F. 252, 253. Therefore, if an ordinary passenger car, weighing less than two and a half tons with passengers, had done this damage and still traveled 270 feet, the facts would give rise to a reasonable inference that the car had been traveling more than 40 miles per hour. Cf. Rodenkirch v. Jonson (1960), 9 Wis.2d 245, 101 N.W.2d 83. We doubt, however, that such an inference could be reasonably drawn from the facts in the instant case where the moving vehicle weighed more than ten times as much as the average passenger car with passengers.

Even if the truck was traveling in excess of forty miles per hour, we are satisfied that its speed could not have been causal. This court has never held that excessive or unlawful speed is causal merely because it places the vehicle at a particular place at a particular time. Excessive speed is causal, however, when it prevents or retards the operator, after seeing danger, from slowing down, stopping, or otherwise controlling the vehicle so as to avoid a collision. Korleski v. Lane (1960), 10 Wis.2d 163, 169, 102 N.W.2d 234; Jewell v. Schmidt (1957), 1 Wis.2d 241, 249, 83 N.W.2d 487; Heagney v. Sellen (1956), 272 Wis. 107, 112, 74 N.W.2d 745, 75 N.W.2d 801. Because Brown, the truck driver, was killed as a result of the collision, he is presumed to have exercised due care for his own safety in all respects including lookout in the absence of any evidence giving rise to a reasonable inference that he failed to so do. Weber v. Mayer (1954), 266 Wis. 241, 249, 63 N.W.2d 318.

On the basis of the facts of this case, we conclude that Brown was faced with an emergency as a matter of law when he first observed that Zaloudek was not going to stop for the arterial. As Zaloudek approached the intersection he reduced his speed from 20 to 10 miles per hour. Baker testified that he did not have time to protest after realizing that Zaloudek was not going to stop for the arterial stop sign. Sub. (2)(c) of sec. 346.46, Stats., 1959, ¹ did not require that the stop for an arterial stop sign be made opposite such sign when, as here, there was no marked crosswalk, but only before entering the intersection. The stop sign in question was located about 24 feet west of the west line of the intersection. Brown had the right, until he observed otherwise, to rely on Zaloudek's obeying the law by stopping before entering the intersection. Because of the slow speed of the car, it would not have been apparent to anyone in Brown's position that Zaloudek was not going to stop until shortly before the Zaloudek car arrived at the west line of the intersection. Going at a speed of 10 miles per hour, the Zaloudek car would have traveled the 13 1/2 feet from this west intersection line to the point of impact in about 9/10ths of a second. The average time needed to move one's foot from the accelerator to the brake pedal is between 3/4 and 1 1/2 seconds. Wisconsin's Manual for Motorists (rev.ed.1959), p. 35. Brown could have done nothing to avoid the collision in the short space of time available to him after he first should have observed that Zaloudek was not going to stop for the arterial. Even if Brown had been afforded 1 1/2 seconds in which to act, he would have been confronted with an emergency as a matter of law which would have excused him from taking some action in an attempt to avoid a collision. Rude v. Algiers (1960), 11 Wis.2d 471, 478, 105 N.W.2d 825; Papacosta v. Papacosta (1957), 2 Wis.2d 175, 178, 85 N.W.2d 790; Clark v. Mutual Automobile Ins. Co. (1957), 1 Wis.2d 357, 362-363, 83 N.W.2d 873.

In view of the foregoing we conclude that it was not error for the trial court to have directed the verdict in favor of Moland Brothers and Carriers.

Negligence of Plaintiff Ronald Baker

The question of the verdict, which inquired with respect to plaintiff Ronald Baker's negligence, read, 'Just before the accident, was the plaintiff, Ronald Baker, negligent for his own safety?' The jury answered this question 'No.' Appellant contends that the trial court erred, as a matter of law, in declining to answer this question 'Yes.' Appellant maintains that Baker was negligent in these two respects: (1) Riding with a driver whom he knew, or should have known, was under the influence of intoxicating beverages; and, (2) Failing to maintain a proper lookout.

At the time of the accident Baker was nineteen years of age and lived with his parents on a farm five miles east of Sarona. On the evening of the accident, Zaloudek called for him around nine o'clock at the Baker home. They drove first to Sarona and from there to Rice Lake which is 14 miles southeast of Sarona. On the way each drank one can of beer from a six-pack in Zaloudek's car. They spent their time at Rice Lake at a tavern where each had ten seven-ounce glasses of beer. They remained at the tavern from...