Christenson v. Klitzke

• Decision Date: 07 January 1958
• Citation: Christenson v. Klitzke, 2 Wis.2d 540, 87 N.W.2d 516 (Wis. 1958)
• Parties: Lenard CHRISTENSON, Adm'r of the Estate of Duane Christenson, Deceased, Appellant, v. Frank R. KLITZKE, Respondent.
• Court: Wisconsin Supreme Court

Page 516

87 N.W.2d 516

2 Wis.2d 540

Lenard CHRISTENSON, Adm'r of the Estate of Duane Christenson, Deceased, Appellant, v. Frank R. KLITZKE, Respondent.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Rehearing Denied Feb. 28, 1958.

Muriel Prazak, Clinton, Geffs, Geffs, Block & Geffs, Janesville, for appellant.

Dougherty, Arnold, Philipp & Murray, James T. Murray, Milwaukee, for respondent.

STEINLE, Justice.

The collision occurred at about 1:00 a. m. on June 1, 1956, at a point approximately two miles northwest of Walworth on U. S. Highway 14. At the situs of the collision the highway runs northwest and southeast (for convenience, referred to herein as north and south). The pavement is of concrete construction,--22 feet 2 inches wide,--with a line in the center. There are shoulders on each side of the pavement. The highway is straight and level for three-quarters of a mile north of the place of impact.

Evidence most favorable to the plaintiff and which the jury was entitled to deem credible indicates as follows: The weather was clear and the highway was dry. Ralph Johansen had been traveling in a southerly direction in his station wagon on the highway when trouble developed in the engine of the vehicle. He drove off the concrete and onto the right (west) shoulder and stopped his vehicle with its left side about three feet from the edge of the concrete. After he waited there for about 15 minutes, a tractor-trailer driven by the defendant Frank R. Klitzke, who was traveling from Minnesota to Indiana, approached from the north. Klitzke stopped his vehicle on the concrete pavement alongside Johansen's station wagon and inquired as to the difficulty. Johansen asked Klitzke to push the station wagon with the tractor-trailer. Klitzke backed the tractor-trailer and pulled in behind the station wagon. Both men observed that the bumpers would not match. Klitzke then drove the tractor-trailer ahead and moved it to a position in front of the station wagon. Johansen testified that he did not believe that all of the tractor-trailer wheels were off the concrete pavement and on the shoulder when Klitzke stopped in front of the station wagon. After so stopping, Klitzke got out and handed a flashlight to Johansen. Klitzke told Johansen that there was a tow chain on the rear bumper of the trailer, and directed that as Klitzke backed up, Johansen was to unhook the chain, and when in position to attach the chain to the station wagon, he was to signal to Klitzke with the flashlight. Klitzke returned to the cab of the tractor and backed his unit for a distance of 4 to 6 feet. Johansen testified that when Klitzke was backing up, he noticed the lights of three vehicles that were coming from the north. When Klitzke stopped, Johansen observed that Christenson's pick-up truck was getting nearer. He moved onto the pavement and waved the flashlight in the direction of Christenson. Klitzke's trailer extended for not more than two to three feet on the pavement at the time. When Johansen noticed that Christenson was not going to swing out, he jumped to the side with the chain in hand, and Christenson's truck struck the left rear wheel of Klitzke's trailer.

In his direct examination, Frank R. Klitzke testified inter alia that he was standing on the running board of the trailer when the collision occurred. The outside tire on the left of the rear axel of the trailer was struck by Christenson's truck.

In his recross examination Klitzke testified in part as follows:

'Q. The Sheriff's Deputies asked you some questions? A. Yes, quite a few.

'Q. Did they ask you where you were, where your tractor and trailer was at the time of this collision? A. I don't know. I don't know if they did or not. When the pick-up truck hit my tractor and trailer, it pushed it forward and sideways.

'Q. Sideways which way,--to your right? A. That's something that is going to be--you see, the unit was in bit of a--we call it 'jack-knife,' not setting perfectly straight. The trailer wasn't perfectly straight behind the tractor. As the pick-up truck hit it, it went forward I would say, four, five, six feet,--something like that. * * * The whole rig went ahead putting it like at an angle like this (indicating); the front came out towards the road and the back end came out in the road, like this (indicating). Do you know what I mean?

'Q. I think I understand what you are testifying to. Now, before you started to back up, did you look to see if anyone was coming from behind you? A. No, I didn't open the door. I looked in the mirrors.

'Q. Were any lights coming behind? A. Not at the time I started backing up, no. I don't think so.

'Q. How far did you back up? A. That's a hard guess to make. Offhand, I would say four, five six feet,--something like that.'

In adverse examination Frank R. Klitzke testified in part as follows:

'Q. You could have waited until this traffic passed before you backed up, could you not? A. That's hard to explain to you. It was such a short period and at the same time you are looking forward and you are still looking forward when you put it in reverse and from the time you take your mind off putting the transmission in gear to look in the mirror to look back there is a time there I had rolled a few feet already and it doesn't come to your mind what is going on behind the truck.

'Q. Didn't you look in the mirror to see if there was any traffic before backing up? A. I don't believe I did, no, sir.

'Q. It is your testimony that you started to back up without first determining whether or not there was traffic coming from behind you, is that right? A. As I tried to explain to you, yes. I didn't see any skid marks on the pavement. I remember the rear wheels of the tractor making skid marks sideways. I don't know if the trailer did or not.'

Don Ketchpaw, a deputy sheriff, testified that shortly after his arrival at the scene of the accident, Klitzke told him that 'he was backing up and his left rear of the trailer was partially on the pavement thereof.'

It appears further from evidence of record that when Christenson was about three-fourths of a mile north of the place of the collision, he passed a semi-trailer driven by John T. Brennan. Previous thereto Christenson had been following Brennan for about one and one-fourth miles. A semi-trailer driven by Lawrence McAlester was following Christenson. The three trucks were traveling in line. McAlester testified that after Christenson had passed Brennan, he 'swung back on his own side and kicked the lights from low to high beam.' McAlester estimated Christenson's speed at 'around 50 miles per hour.' McAlester was attempting to pass Brennan immediately prior to the collision, but dropped behind Brennan before reaching the scene of the accident. Both Brennan and McAlester stopped at the place of collision. McAlester estimated Brennan's speed at 40 miles per hour and his own speed at 50 miles per hour. McAlester observed the clearance lights and left hand light on Klitzke's unit before the collision. He saw no warning of a flashlight in the vicinity of the Klitzke unit.

The left rear corner of Klitzke's trailer was standing on the pavement immediately after the collision. Debris, principally in the form of loose dirt, was observed by officers who investigated the accident. The position of the trailer and the debris are indicated in a photograph taken shortly after the collision. After the impact Christenson's truck moved to a ditch directly across from Klitzke's trailer and was completely demolished there. There were no skid marks of Christenson's vehicle on the pavement. Klitzke testified that the wheels of his tractor made skid marks sideways, but that he did not know whether the trailer had made skid marks.

Johansen testified that ten minutes elapsed from the time that Klitzke first stopped to inquire as to Johansen's difficulty and the time of the collision. Although Klitzke carried fusees in his vehicle, no fusee flares were set out. Klitzke testified that had it been necessary he could have lit fusees and could have set them out before starting to pull Johansen out. When McAlester and Brennan arrived at the scene of the collision they immediately set out fusees as specified in sec. 85.06(18), Stats.

The above evidence was partly contradicted by the testimony of Brennan, principally in that said witness estimated Christenson's speed, after passing Brennan, at 70 miles per hour, and in that he observed the waving of a flashlight from the direction of the vehicles of Johansen and Klitzke for probably 15 seconds before the collision. The rule requires that under facts as here the court consider the evidence most favorable to the plaintiff and to the jury's findings. Swanson v. Maryland Casualty Co., 1954, 266 Wis. 357, 63 N.W.2d 743.

In its decision on motions after verdict the trial court expressed opinion (1) That it was proper under the evidence to have submitted to the jury the questions relating to causal negligence of the defendant with respect to the position of the tractor-trailer in relation to the roadway; (2) that the court had erred in submitting to the jury the questions as to causal negligence of the defendant with respect to putting out warning devices; (3) that the decedent's failure with respect to lookout and the decedent's speed at more than the limit of 55 miles per hour constituted extraordinary causal negligence which as a matter of law was at least equal to 50 percent of the combined negligence of the drivers involved.

On this appeal the plaintiff contends (a) that there was sufficient evidence to warrant the finding of the jury that the defendant was causally negligent with respect to putting out warning devices, and (b) that there was sufficient evidence to warrant the jury in finding that 60 percent of the total negligence was attributable to the defendant.

There is an abundance of evidence indicating that the left rear part of the defendant's trailer was on the pavement...