Blanchard v. Terpstra

• Decision Date: 22 December 1967
• Parties: Wayne BLANCHARD et al., Appellants, v. J. D. TERPSTRA et al., Respondents.
• Court: Wisconsin Supreme Court

Page 156

155 N.W.2d 156

37 Wis.2d 292

Wayne BLANCHARD et al., Appellants, v. J. D. TERPSTRA et al., Respondents.

Supreme Court of Wisconsin.

Dec. 22, 1967.

Steele, Smyth, Klos & Flynn, Charles N. Goerdt, guardian ad litem, La Crosse, for appellants.

Edwards, Hafner & McDonald, La Crosse, for respondents.

HEFFERNAN, Justice.

Parking on sidewalk as negligence

The trial judge properly concluded that he erred in submitting to the jury question 2(a) inquiring whether the defendant was negligent in parking on the sidewalk in violation of sec. 346.52(1)(d), Stats. In his memorandum decision, the trial judge stated:

'* * * that Sec. 346.52(1)(d) is intended for the protection and convenience of users of the sidewalk and not to furnish a point for an inefficient (the trial judge having previously noted that no effective observation could be made from a point on the sidewalk) observation. The plaintiff is not within the class of persons Sec. 346.52(1)(d) is intended to protect.'

This analysis by the trial judge is obviously correct and had the effect of eliminating from the verdict the only negligence question submitted to the jury. The trial judge elected to implement this conclusion by changing the answer of the cause question from 'yes' to 'no.' We conclude that a more appropriate technique would have been to strike from the verdict, as inapplicable, both the negligence question and the cause question. ¹

Nevertheless, we affirm the conclusion of the trial judge that no liability is imposed upon the defendant by the violation of the statute that prohibits

parking on a sidewalk. Should the question of common-law

negligence independent of statute have been

submitted to the jury

Plaintiffs on appeal do not seriously contend that the court erred in changing the answer to question 2(a). They do, however, maintain that the court erred in failing to submit the proposed question inquiring whether the defendant had negligently parked his truck in a location so it constituted an unreasonable interference with, and an unnecessary obstruction of, vision of those lawfully using the street.

While we do not in this opinion give approval to the precise form in which the question was offered, we agree with the plaintiffs' contention that the question of common-law negligence should have been submitted. While the record is not completely clear, the trial court apparently took the position that the statutory standard of negligence barred the finding of commonlaw negligence, i.e., that, if the conduct was either controlled by statute or not proscribed by it, any common-law standard was irrelevant.

7 Am.Jur.2d, Automobiles and Highway Traffic, pp. 899--900, sec. 353, states the general rule to the contrary that a safety statute merely establishes a minimum standard of care and the conduct, even though sanctioned or in conformity with the statute, is not thereby necessarily relieved of conforming to the common-law requirements of ordinary care. In any event that establishment of a statutory definition of negligence per se does not thereby result in a preemption of the entire negligence question. There remains the question of possible common-law negligence.

The allegation of the complaint, 'He so carelessly and negligently parked his truck so as to obstruct the view of the people using the alleyway,' together with the testimony that the view was obstructed, sufficiently posed the question of commonlaw negligence as to require its submission to the jury. While it may not have been foreseeable that the conduct of the defendant would result in the particular injury sustained, it is apparent that some harm was foreseeable as the result of the admitted physical obstruction of a portion of the street and of the sidewalk, in addition to the probable harm that might, and in this case did, result from obstruction of the view of users of the highway and the alley. It is thus apparent that the jury could have found conduct of Terpstra to be negligent.

In Cirillo v. City of Milwaukee (1967), 34 Wis.2d 705, 711--712, 150 N.W.2d 460, 463, we stated:

'This court has often stated that 'harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence.' There is no necessity, however, that the actual harm that resulted from the conduct be foreseen. In Schilling v. Stockel (26 Wis.2d 525, 133 N.W.2d 335) this court, quoting with approval from Christianson v. Chicago, St. P., M. & O.R. Co. (67 Minn. 94, 69 N.W. 640), said:

"* * * the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow."

Applying, then, the standards that have been accepted by this court, it is apparent that a question of common-law negligence was presented and a question in that regard should have been submitted to the jury.

In the usual case, having decided that a requested special-verdict question was erroneously rejected, we would remand for a new trial. We conclude, however, in view of our conclusion in respect to the comparison of negligence,...