Cook v. Wisconsin Tel. Co.

• Decision Date: 06 January 1953
• Citation: Cook v. Wisconsin Tel. Co., 56 N.W.2d 494, 263 Wis. 56 (Wis. 1953)
• Parties: COOK, v. WISCONSIN TEL. CO. et al.
• Court: Wisconsin Supreme Court

Page 494

56 N.W.2d 494

263 Wis. 56

COOK, v. WISCONSIN TEL. CO. et al.

Supreme Court of Wisconsin.

Jan. 6, 1953.

Dodge Street in the city of Lake Geneva runs east and west. Kelly's alley extends north from it. On October 14, 1949 the plaintiff, an employee of the city, was engaged in raking leaves on the north side of Dodge Street, collecting them in the north gutter and burning them. At the time of the accident leaves were burning across the entrance to the alley. When he was struck by defendant's truck the plaintiff was standing at the entrance to the alley, one foot west of its east curb and one foot north of the north curb of Dodge Street. The leaves were damp and he was stirring them to cause them to burn. Dense smoke arose from the fire across the entrance to the alley. He was enveloped in the smoke and could not see objects two feet in front of him towards Dodge Street.

Defendant's employee was driving its truck east on Dodge Street and observed the fire and the smoke blowing across the street. He entered the smoke and turned the truck north to enter the alley. As he approached the alley he was driving at from five to ten miles per hour and slowed down as he made the turn. He could see the west but not the east curb of the alley. He did not see plaintiff standing in the cloud of smoke until the front of the truck was two feet from him. Nor did the plaintiff see the truck until it was two feet from him.

When plaintiff saw the truck he shouted and placed his hands over its hood and radiator. He was forced backward onto the parkway on the northeast side of the alley and was injured. After striking the plaintiff the truck moved a distance of two feet.

In answer to the questions of a special verdict the jury found that plaintiff was guilty of causal negligence with respect to the position he was occupying in the alley, and that defendant's driver was guilty of causal negligence in failing to sound his horn. It exonerated defendant of negligence with respect to speed, management and control. 90% of the causal negligence was attributed to the plaintiff and 10% thereof to defendant's driver.

Upon plaintiff's motions after verdict the court changed the answers to the questions inquiring as to defendant's speed and management from 'no' to 'yes' and denied his motion to change the answer inquiring as to his own negligence from 'yes' to 'no'. Being of the view that such result requires a recomparison of the causal negligence, the court ordered a new trial. Defendant appeals.

Vilas H. Whaley, Racine for appellant.

Kenney, Korf & Pfeil, Elkhorn, for respondent.

GEHL, Justice.

The trial court changed the answers to the questions which inquired whether defendant's driver was negligent with respect to speed and to management and control upon the ground that he was guilty of causal negligence in those respects as a matter of law. The court was of the opinion that the issue is determined by the rule of Guderyon v. Wisconsin Telephone Co., 240 Wis. 215, 2 N.W.2d 242, 247. In that case it appeared that one Teske proceeding south upon a highway drove his truck to the east side of the road and parked it facing south at a point about six feet north of a place where a farmer was engaged in burning brush. The fire caused a cloud of smoke to blow southwestward almost completely obscuring the view along the highway from the south toward the parked truck. Mrs. Guderyon in an automobile approached the truck from the south at a speed of from twenty to thirty miles per hour and on passing through the cloud of smoke crashed into the truck. The driver of the truck testified that when he first saw plaintiff's automobile it was about one hundred feet to the south of him; that all he could see through the smoke was the top of the car and about a foot of the windshield, and that the obstruction caused by the smoke had existed for at least fifteen seconds before the collision. Mrs. Guderyon was killed as a result of the accident and, of course, did not testify. The truck driver testified that he did not notice that Mrs. Guderyon slowed down before the crash and this court assumed that she did not. This court held that Mrs. Guderyon was guilty of causal negligence as a matter of law with respect to speed and control, and said:

'Under these circumstances there was applicable to her conduct in the control and management and the speed at which she continued operating the car, the well established principle that it is the duty of the operator to drive it at such rate of speed that he can bring his car to a standstill within the distance that he can plainly see objects or obstructions ahead of him; and that if he continues to proceed when he is unable to see because his vision is obsecured by smoke, or dust or darkness, he is negligent.'

And, quoting from Mann v. Reliable Transit Co., 217 Wis. 465, 259 N.W. 415, 416, it said further:

'When the situation on a highway is such that one's vision is completely obscured, it is one's duty to slow down or even stop until the cause of such obscured vision is at least in part removed. Johnson v. Prideaux, 176 Wis. 375, 187 N.W. 207; Leonard v. Bottomley, 210 Wis. 411, 245 N.W. 849; Pietsch v. McCarthy, 159 Wis. 251, 150 N.W. 482. Whether one's vision is completely obscured by blinding lights, dust, or dense smoke seems quite immaterial. Had it not been raining hard at the time of the accident, we should be inclined to hold that the plaintiff was negligent as a matter of law in not discovering that the Sprout truck was standing still.'

Counsel for defendant points to but one distinction between the facts in the instant case and those in the Guderyon case, that in the latter it appeared that Mrs. Guderyon did not reduce her speed on entering the smoke, while it appears here that the truck driver did reduce his speed as he approached the alley and when he reached the gutter he reduced it further to a point where he could not go slower without coming to a stop. The difference in the rates of speed at which the vehicles were being driven does not serve to distinguish the cases. The duty to stop under the circumstances exists regardless of the rate of speed at which the vehicle is being driven. If because of his speed he is unable to stop and avoid a collision, he has failed to comply with the rule.

The obstruction to the truck driver's view did not appear suddenly. He observed the smoke as he entered Dodge Street from an interecting street to the west of the alley. He could not see more than ten feet ahead of him just before he started to make the turn...