La Fave v. Lemke

• Decision Date: 08 April 1958
• Citation: 89 N.W.2d 312,3 Wis. 2d 502
• Parties: Rueben LA FAVE, Respondent, v. Alfred LEMKE et al., Appellants, Margaret Taylor, Impleaded Defendant and Respondent.
• Court: Wisconsin Supreme Court

Page 312

89 N.W.2d 312

3 Wis.2d 502

Rueben LA FAVE, Respondent, v.Alfred LEMKE et al., AppellantsMargaret Taylor, ImpleadedDefendant and Respondent.

Supreme Court of Wisconsin.

April 8, 1958.

Evrard, Evrard, Duffy, Holman & Faulds, Green Bay, for appellants.

James H. Plier, Oconto, for plaintiff-respondent.

BROWN, Justice.

Appellants submit that the trial court's instruction to the jury on the question of La Fave's contributory negligence was prejudicially erroneous.The question, with the jury's answer was:

'Fifth Question: At or immediately before the time of the collision in question,

'Was the plaintiffRueben La Fave negligent in bringing his automobile to a stop in the manner and place he did?Ans: No.'

In the instruction on this question the court read to the jury sec. 85.19(1), Stats.:

'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 unobstructed width of no less than fifteen feet upon the roadway of such highway opposite such standing vehicle shall be left for the free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction along such highway.'

Sec. 85.10(21)(a) and (e), Stats., provide definitions pertinent here, as follows:

'(a) A highway is every way or or place of whatever nature open to the use of the public as a matter of right for the purposes of vehicular travel.The term 'highway' shall not be deemed to include a roadway or driveway upon grounds owned by private persons, colleges, universities or other institutions, except upon property under the jurisdiction of the board of regents of state colleges.

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'(e) Roadway is that portion of a highway between the regularly established curb lines or that portion which is commonly used by vehicular traffic.'

There are no curb lines at the place where the accident occurred.In Guderyon v. Wisconsin Telephone Co., 1942, 240 Wis. 215, 221, 2 N.W.2d 242, we held that the shoulder of a highway, not being commonly used for vehicular traffic, cannot be included as part of the roadway.

Sec. 85.10(28) and (29), Stats., define business and residence districts thus:

'(28) Business district.The territory contiguous to a highway when fifty per cent or more of the frontage thereon for a distance of three hundred feet or more is occupied by buildings in use for business.

'(29) Residence district.The territory contiguous to a highway not comprising a business district where the frontage on such highway for a distance of three hundred feet or more is mainly occupied by dwellings or by dwellings and buildings in use for business.'

Photographs in evidence show the area to be open country, and neither a business nor a residence area.

Applying these definitions to this situation 'highway' in this case includes the shoulders and 'roadway' includes only the cement pavement.One must observe, then, that sec. 85.19(1), Stats., directs that, if it is practical to park, stop, etc., off the cement no person shall stop or park on the shoulder.We cannot think that is what the legislature meant.The ambiguity or absurdity is sufficiently apparent for us to construe the section as saying that no one shall stop or park on the roadway (cement) if it is practical to get off it onto the shoulder and, having got onto the shoulder, he has complied with this statute unless he stops where he violates its provisions for leaving a clear roadway or a clear view.His duty to use ordinary care continues.

The evidence shows that when his car was struck La Fave was stopping, or had stopped some 70 feet to the rear, south of the Taylor car and on the opposite shoulder.It is undisputed that this left more than 15 feet of clear and unobstructed roadway opposite the La Fave automobile, as directed by sec. 85.19(1), Stats.

Respecting the requirement of sec. 85.19(1), Stats., that the parked vehicle should be capable of being seen at a distance of 200 feet, there was evidence which the jury might believe that when the Lemke car stopped after the collision it was 240 feet distant from La Fave's automobile and was within sight of it.One of Lemke's passengers testified that at the time and place of the collision there was at least 200 feet of visibility in the direction of the La Fave car.Furthermore, Lemke and another of his passengers testified that they saw La Fave while both he and Miss Taylor were proceeding north, in the east lane.If the jury believed this, it is obvious that La Fave was visible to Lemke before he, La Fave, went onto the shoulder and whether there was more or less than the statutory visibility was immaterial, being no part of the cause of the collision.

The jury was well warranted by the evidence in concluding that there was no breach by La Fave of sec. 85.19(1), Stats.

Appellants assert that the court gave insufficient instructions on the plaintiff's common law duty to use due care.On this subject the court charged:

'* * * A person is negligent when without intending to do any wrong, he does such an act or omits to take such a...