Diener v. Heritage Mut. Ins. Co.

• Decision Date: 29 December 1967
• Citation: 37 Wis.2d 411,155 N.W.2d 37
• Parties: Ruth DIENER, Plaintiff-Respondent, v. HERITAGE MUTUAL INSURANCE COMPANY, a domestic Insurance Company, George L. Hare, Defendant-Appellants, Mid-Century Insurance Company, a foreign insurance corporation, and David Diener, Defendant-Respondents.
• Court: Wisconsin Supreme Court

Page 37

155 N.W.2d 37

37 Wis.2d 411

Ruth DIENER, Plaintiff-Respondent, v. HERITAGE MUTUAL INSURANCE COMPANY, a domestic Insurance

Company, George L. Hare, Defendant-Appellants,

Mid-Century Insurance Company, a foreign insurance

corporation, and David Diener, Defendant-Respondents.

Supreme Court of Wisconsin.

Dec. 29, 1967.

Holden & Halvorsen, Sheboygan, for appellants.

Bonk, Lutz & Hertel, Chilton, for plaintiff-respondent.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for defendants-respondents.

HALLOWS, Justice.

Hare claims the causal negligence of Diener was a superseding cause of the plaintiff's injuries and the trial court abused its discretion in permitting Diener after the evidence had been closed to testify for the purpose of correcting his previous testimony.

On the afternoon of April 30, 1964, the defendants, as members of a funeral procession, were traveling east on Highway 10 in Calumet county. The procession was led by an automobile driven by Glenn Hall; the second car was the hearse driven by Hare, the funeral director; then followed Diener driving his own automobile and several other cars not involved in the collision. Just before the collision, the procession was moving at about 50 miles per hour with four or five car lengths separating the lead car and the hearse, and five or six car lengths separating the hearse and the Diener automobile. The procession came upon a school bus which was facing west on the opposite side of the highway and was either coming to a stop or had stopped. The leading Hall car came to a stop before it reached the front of the bus. Hare, in the hearse, noticed the brake lights on the Hall car but hesitated for three or four seconds before applying his brakes. It was then a panic application which left skid marks for 33 feet and caused smoke to arise from the tires, but the hearse rear-ended the Hall car.

Hare was aware that the Diener automobile with its occupants was rather close behind him. In fact, Diener in following the hearse was going slightly faster than the hearse to close the gap and was about five to six car lengths, or about 96 feet, behind the hearse. When Diener realized the hearse's brake lights were on and saw its tires smoke, he applied his brakes lightly and continued to overtake the hearse. He testified he did not brake harder because he was afraid of the cars to his rear and of causing a chain-reaction collision. When Diener was within one or two car lengths of the hearse and in order not to rear-end it, he swerved his car off the highway onto the right shoulder and he was passing the hearse when it struck the Hall car. In passing the hearse, Diener struck a mail box which was on the grass edge of the shoulder, but the plaintiff's whiplash injury to her neck was allegedly received from the swerving of the Diener car.

On his adverse examination and at the trial on direct and cross examination, Diener testified he was going 5 miles per hour when he swerved his car off the highway. After the parties rested, Diener was permitted to reopen his case. He stated he wished to correct his prior testimony and he testified his speed was not 5 miles per hour but about 25 miles per hour. He based his new estimate on a test he had made during the trial in his automobile which was a different automobile than that which was involved in the accident.

Hare admits he was causally negligent in rear-ending the Hall car but claims he was not negligent as to the plaintiff and her injuries were solely due to the intervening and superseding negligence of her husband in operating his car. Diener argues his negligence was a concurrent cause with Hare's negligence because the injuries to the plaintiff occurred within a few seconds following Hare's negligence in respect to lookout and management and control.

We think the jury was correct in finding Hare causally negligent as to the plaintiff's injuries. While this is not a case of tandem driving with mutual stimulation as in Ogle v. Avina (1966), 33 Wis.2d 125, 146 N.W.2d 422, which dealt with the comparison of causal negligence of two negligent drivers, nevertheless, driving in a procession creates special hazards. Hare was aware that Diener was closely following him in the funeral procession and owed him and the occupants of his car a duty not to create an unreasonably harmful situation by his driving. This is not a question of whether Hare owed any duty to Diener in respect to lookout to his rear because he had knowledge of Diener's presence. Hare was negligent, however, in that he did not have his hearse under such control as to allow him to come to a stop without creating a hazard to the following Diener car. Hare was faced not with an emergency but with the obligation to stop when Hall began to slow down and stop for the school bus. At that time his duty was to stop without injuring Hall and in such a manner as not to create a hazard to the cars coming from his rear. If Hare could not do this he was either following Hall too closely for his speed or he did not apply his brakes soon enough, or both. This manner of driving was negligent both in respect to Hall and also to those who followed him. Hare's delay in applying his brakes for three or four seconds had the effect of shortening the braking distance of Diener and of creating a situation which would prompt some reaction upon Diener's part. This was reasonably foreseeable on Hare's part and constituted negligence under the doctrine of Osborne v. Montgomery (1931), 203 Wis. 223, 234 N.W. 372.

That a driver of an automobile has a duty to those to his rear under some circumstances is not new. We have held that a motorist has a duty of making an observation to the rear to see if he can stop or slow down on a highway with safety. Bentzler v. Braun (1967), 34 Wis.2d 362, 149 N.W.2d 626. In Bentzler we pointed out and distinguished those cases in which the primary responsibility of the driver under existing circumstances was to keep his lookout ahead. See Statz v. Pohl (1954), 266 Wis. 23, 62 N.W.2d 556, 63 N.W.2d 711; Tesch v. Wisconsin Public Service Corp. (1957), 2 Wis.2d 131, 85 N.W.2d 762; Jacobson v. Greyhound Corp. (1965), 29 Wis.2d 55, 138 N.W.2d 133; Thoresen v. Grything (1953), 264 Wis. 487, 59 N.W.2d 682. But in Bentzler, where lookout to the front was not preempted, we required lookout to the rear for stopping and found negligence because the driver did not look and the stopping was made without activating his red taillights. In normal cases where taillights are activated and sufficient, we have held the duty to exercise a lookout to the rear has been fulfilled. Mack v. Decker (1964), 24 Wis.2d 219, 128 N.W.2d 455; St. Clair v. McDonnell (1966), 32 Wis.2d 469, 145 N.W.2d 773.

However, Hare was making no normal stop and his activating taillights were not sufficient warning for Diener behind him to make a safe stop of his car considering the traffic behind him or at least as the situation appeared to Diener.

Diener argues his negligence and that of Hare are concurrent causes while Hare argues Diener's negligence was an intervening and superseding cause. To be a superseding cause, the cause must first be an intervening force. For many years this court has been committed to the definitions of concurrent, intervening, and superseding causes in the Restatement of Torts. A 'concurrent cause' is defined in Restatement, Torts 2d, p. 464, sec. 439, as, 'If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability;' on p. 465, in sec. 441(1), an 'intervening force' is defined as, 'An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.' See Foellmi v. Smith (1961), 15 Wis.2d 274, 112 N.W.2d 712.

It is not necessary that the two forces be absolutely simultaneous if they are substantially so. In comment a in sec. 439, Restatement, Torts 2d, p. 464, it is stated that it is enough that the two forces are in substantially simultaneous act, as 'when the effect of the conduct of one or the other has ceased its active operation immediately before the other's conduct takes active effect in harm to the other.' We think, however, Diener's action was an intervening force because it was set in motion after Hare's negligent conduct which created the danger was committed. This was his failure to timely apply his brakes and thus give warning to Diener. Diener's intervening negligence was dependent and actively operated in response to and as a the deviation was so slight as to be inconsequential. which Hare created by his negligence. Of course, both Hare's negligence and Diener's negligence 'concurred' in the sense they were both substantial facts in contributing to the plaintiff's injury but that is not the test of a concurrent cause under sec. 439.

In sec. 440, Restatement, Torts 2d, p. 465, a 'superseding cause' is defined as, 'A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is...