Callaway v. Kryzen

• Court: Wisconsin Supreme Court
• Writing for the Court: NELSON
• Citation: Callaway v. Kryzen, 228 Wis. 53, 279 N.W. 702 (Wis. 1938)
• Decision Date: 17 May 1938
• Parties: CALLAWAY v. KRYZEN et al.

228 Wis. 53

279 N.W. 702

CALLAWAY

v.KRYZEN et al.

Supreme Court of Wisconsin.

May 17, 1938.

Appeal from a judgment of the Circuit Court for Walworth County; E. B. Belden, Judge.

Reversed.

The action was commenced on June 14, 1937, by the plaintiff, William Callaway, against the defendants, Harry Kryzen, Gateway City Transfer Company, a corporation, and Royal Indemnity Company of New York, to recover damages for injuries sustained by him as a result of a collision between his automobile and a disabled truck belonging to Gateway City Transfer Company, which had been left standing on the right half of the roadway of a highway, by its servant Kryzen. At the conclusion of the plaintiff's case, the court granted the defendants' motion for a nonsuit. In granting the motion, the court said: “If it be conceded that the jury might find some negligence on the part of the driver of the truck, which I doubt might properly be done, but which it is not necessary to rule upon in view of what is to follow, I am of the opinion that the plaintiff is chargeable with negligence as to lookout, with respect to not seeing and heeding the flares and flags, with respect to speed in that he undertook to pass the truck without first ascertaining if he could safely do so, as to control in operating his automobile on the left side of the highway upon part of a grade and curve where his view along the highway was obscured within a distance of one thousand (1,000) feet, in traversing a curve and grade where the plaintiff did not have a clear view of approaching traffic upon the highway and operating at a speed greater than that which would permit him to stop his vehicle within one-half (1/2) the range of his vision, in operating his automobile carelessly and heedlessly and without due caution and circumspection, and that his negligence, as a matter of law, contributed to cause the collision and his resulting injuries in greater degree and amount than the negligence, if any, contributed by the driver of the truck. The plaintiff may not have the benefit of the emergency rule because the emergency was created or contributed to by his own negligence.”

From a judgment which dismissed the plaintiff's complaint on the merits, entered November 16, 1937, the plaintiff appealed.

FAIRCHILD, J., dissenting.Olin & Butler, of Madison (C. G. Mathys and Eldon J. Cassoday, both of Madison, of counsel), for appellant.

Godfrey & Cullen, of Elkhorn, and Alfred R. Gandrey, of Milwaukee (Alfred L. Godfrey, of Elkhorn, of counsel), for respondents.

NELSON, Justice.

On March 12, 1937, the defendant Kryzen was employed by the defendant Gateway City Transfer Company. On that day he was operating one of the company's trucks which was heavily loaded with hickory lumber. The load weighed about 18,000 pounds. While proceeding along U. S. Highway No. 12 in a westerly direction, several miles east of Whitewater, one of the right rear tires of the tractor went flat and very shortly thereafter the other dual tire blew out. He stopped his truck on the pavement within a short distance after the blowout occurred. It was then about 5 o'clock in the morning and, of course, dark. He put out a lighted fuse and also placed two flares to the rear of his truck and flares ahead of it. He also put out red flags close to the flares. He removed the damaged tires and installed a spare tire on one of the dual wheels. Thereafter at about 6 o'clock he caught a ride into Whitewater where he contacted a filling station operator who promised to send a man out to the stalled truck shortly after seven o'clock. Kryzen then returned to the place where his truck was disabled and waited for the repairman to arrive. Later on he again went into Whitewater, and after the tire which had gone flat was repaired, went back to the truck with the repairman. At that time it was about 8:30 o'clock in the morning. Just shortly before they arrived at the place of the disabled truck, the plaintiff, who was driving a Chevrolet automobile, crashed into the left rear end of the trailer at an angle of thirty-five to forty degrees.

The plaintiff was driving from Chicago to Madison. He observed the truck when he came around a bend in the road, which was at least a city block away from it. At first he did not know that it was not moving. He soon discovered, however, that it was standing still. He turned into the left lane when some distance from the truck, apparently without slackening his speed, which was about forty to forty-five miles per hour. The truck was parked on a slight incline or hill, the crest of which was about 200 feet beyond. The plaintiff recalled seeing one of the flares which was still burning. There was credible evidence that shortly before the plaintiff was about to pass the truck a sedan driven at a high rate of speed came over the crest of the hill from the west. The coming of this sedan, apparently, is what caused plaintiff to turn back to his right and into the truck. The plaintiff received a head injury as a result of the collision and could not recall at the time of the trial just why he turned back. Three disinterested witnesses, however, testified to the presence upon the highway of the swiftly driven sedan, which passed the plaintiff's automobile successfully, but did not stop. This is a sufficient statement of the facts for an understanding of the decision.

The trial court apparently was of the opinion that, under the circumstances, it was doubtful whether the jury would be warranted in finding the defendant Kryzen negligent, but regardless of that opinion, held as a matter of law that the negligence of the plaintiff was equal to or greater than that of the defendant. While the question may be regarded as a close one, we are of the opinion that the issues respecting the negligence of the parties should have been submitted to the jury and compared by it.

Evidence was adduced by the plaintiff which, if deemed credible by the jury, would support a finding that the defendant Kryzen was negligent in at least one respect. The plaintiff contends that the jury might have found that the defendant Kryzen and his employer were negligent: (1) In loading the truck beyond the carrying capacity of its tires, (2) failing to carry more than one spare tire, (3) stopping the truck upon the highway outside of a business district when it was practical to stop off the roadway of the highway, (4) failing to leave an unobstructed width of no less than fifteen feet upon the roadway of the highway opposite the standing truck, (5) stopping on a hill, and (6) failing to remove the truck from the highway before the collision by (a) driving it under its own power on to a private roadway near by, or (b) sooner having the flat tire repaired.

[1][2][3][4] In our view, under the evidence adduced, the only negligence of Kryzen which could be considered as a proximate cause of the collision was his leaving the truck standing upon the roadway, without leaving a clear and unobstructed width of no less than fifteen feet of the roadway opposite the truck, if the truck was not disabled in such a manner or to such an extent as to make it impossible to avoid stopping or temporarily leaving it upon the highway.

Section 85.19 (1) provides: “Parking on highway. No person shall park, stop, or leave standing any vehicle, whether attended or unattended, upon any highway outside a business or residence district when it is practical to park, stop or leave such vehicle standing off the roadway of such highway, provided that in no event shall any person park, stop or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and...