Delfosse v. New Franken Oil Co.

• Decision Date: 01 April 1930
• Citation: 230 N.W. 31,201 Wis. 401
• Parties: DELFOSSE v. NEW FRANKEN OIL CO.
• Court: Wisconsin Supreme Court

201 Wis. 401

230 N.W. 31

DELFOSSE

v.NEW FRANKEN OIL CO.

Supreme Court of Wisconsin.

April 1, 1930.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge. Affirmed.

Action commenced January 17, 1929, to recover for damages to plaintiff's automobile. From a judgment entered July 5, 1929, pursuant to a special verdict favorable to plaintiff, defendant appealed.A. McComb, of Green Bay, for appellant.

North, Parker, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for respondent.

FRITZ, J.

Viewed most favorably in support of plaintiff's contentions and the jury's verdict, the following facts were established by direct evidence or reasonable inference therefrom: On a dark night defendant's driver, after traveling south on a country highway, turned over to his left side and parked the truck facing south at the left or east edge of the twenty-four foot wide traveled portion of the road. He shut off the motor, but left the headlights lit, and, as the front wheels were a little closer to the center of the road, the lights cast their brightest beams a little to the right. Within five feet of the left side of the truck there was a ditch, paralleling the highway, but to the right of the truck the travelable portion of the highway was still eighteen feet wide. Defendant's driver left the truck, and, crossing a small bridge which was over the ditch opposite the front of the truck, called on a customer to whom he desired to sell and deliver gasoline. South of the truck the road was straight for about one hundred feet, and then in the next one hundred feet it curved about one foot to the west. Plaintiff's son, approaching from the south in plaintiff's automobile, with headlights properly lit, saw the lights of the truck when he was six hundred feet away, and traveling at thirty-five to forty miles per hour. As he approached, because of the slightly crosswise position of the truck and the vibration of his windshield, he thought that the lights of the truck were moving. When he was about one hundred feet away and straightened his car so that his lights headed directly toward the truck, he discovered that it was on the wrong side of the road, but he then thought that it would turn to its right and allow him to pass on its left. He threw his car out of gear and coasted at twenty-five to thirty miles per hour, until he was forty feet from the truck, when, realizing that it was not going to turn to its right, he reduced his speed to ten miles per hour and attempted to avoid a collision by going along the ditch to the right of the truck. In doing so, the hub cap of the rear left wheel struck the tire and hub cap of the left front wheel of the truck, and the automobile demolished the bridge and was damaged.

The jury found: (1) That the collision was the natural and probable result of the parking of the truck to the left of the center of the road; (2) that the truck driver ought to have foreseen that a collision with a traveler upon the highway might probably follow from such parking; and (3) that plaintiff's son was not driving at an unlawful speed, and did not fail to keep a proper lookout. Upon that verdict the court ordered judgment in favor of the plaintiff for the recovery of the damages assessed by the jury.

Defendant assigns as error that the court erred in not changing the jury's findings so as to absolve the defendant from negligence, and find plaintiff's son guilty of contributory negligence, as a matter of law, “in driving into a bridge in the face of blinding lights.”

[1][2] The questions of whether there was negligence on the part of either driver are so close under the evidence in this case that it would have been within the province of the jury to answer otherwise than they did as to each finding. The truck driver did not violate section 85.02, Stats. 1927, by parking his truck on the left side of the highway. There was still left, as required by statute, a free and usable passageway of at least eighteen feet, so that vehicles going in opposite directions could pass without interference from any standing vehicle. His temporary parking, merely long enough to make a necessary business call and delivery, incidental to his lawful travel upon the highway, did not constitute an unreasonable use thereof if he did not thereby unreasonably interfere with others; and the use of the left-hand side of the road while making such reasonable use thereof, without any unreasonable interference with others, does not constitute negligence per se. Schacht v. Quick, 178 Wis. 330, 190 N. W. 87, 25 A. L. R. 130. Likewise, as the truck was at a standstill, and not being driven as plaintiff's automobile approached, section 85.01, Stats., providing that whenever drivers of vehicles “shall meet on any highway” each shall seasonably drive his vehicle to the right of the middle of the traveled part of the highway, is inapplicable, and there was no violation thereof by defendant's driver.

[3] However, the evidence presents more than the simple situation of an automobile parked on the left-hand side of the highway. In addition, there were the following peculiar circumstances: A dark night; a roadway which, in width,...