Firkus v. Rombalski

Decision Date27 October 1964
Citation25 Wis.2d 352,130 N.W.2d 835
PartiesJoseph J. FIRKUS, Plaintiff, v. Peter F. ROMBALSKI and Home Mutual Insurance Company, a Wisconsin insurance corporation, Defendants-Respondents, and Town of Hull, Impleaded Defendant-Appellant. James SHERIDAN, Plaintiff, v. HOME MUTUAL INSURANCE COMPANY, a Wisconsin insurance corporation, Joseph J. Firkus and Farmers Mutual Automobile Insurance Company, a Wisconsin insurance corporation, Defendants- Respondents, and Peter F. Rombalski, Impleaded Defendant-Respondent, Town of Hull, Impleaded Defendant-Appellant.
CourtWisconsin Supreme Court

Atwell & Atwell, James H. Van Wagenen, Stevens Point, for appellant.

Byrne, Bubolz, Spanagel & Pfankuch, Appleton, for Rombalski and Home Mutual Ins. Co.

Peickert, Anderson, Fisher, Shannon & O'Brien, Stevens Point, for Firkus and Farmers Mut. Automobile Ins. Co.

HALLOWS, Justice.

Rombalski in driving his car north on Dobeck road was proceeding, according to his testimony, about 50 miles an hour and according to Sheridan's testimony about 70 m. p. h. Rombalski testified he did not know he was approaching an intersection until he was 25 feet from it. There was no stop sign on Dobeck road and he did not reduce his speed in entering the intersection. He first saw the Firkus car when he was 10 to 15 feet from the intersection and when the Firkus car was a few feet from entering the intersection. Sheridan testified he saw the intersection when it was about 500 feet distant. When Rombalski and he were about 100 feet south of the intersection he saw the Firkus car about 50 feet west of the intersection. All Rombalski did when he saw Firkus was to take his foot from the accelerator and tap the brake.

Firkus testified that as he approached the intersection from the west he was traveling about 40 to 45 m. p. h. and did not reduce his speed in entering the intersection. The first time he saw Rombalski's car was when it was 80 feet south of the intersection and he was about 20 feet west of the intersection. As he entered the intersection he stepped on the gas and speeded up to get out of Rombalski's way. The Rombalski car struck the Firkus car approximately in the center of its right side.

It is undisputed the area southwest of the intersection was heavily wooded with pine trees which obscured the vision of each driver. Sometime in 1957 or 1958 the town board of the Town of Hull decided to erect stop signs on the Dobeck road where it intersects with Jordan road, thereby giving preference to traffic on Jordan road. In March or April of 1962 the sign to the south of Jordan road was removed by vandals, but the record does not show the board chairman of the town had actual knowledge of this fact prior to August 7, 1962. New signs were ordered on August 8 but had not arrived and the missing sign had not been replaced at the time of the accident. Firkus testified he believed the sign was still there while Rombalski stated he did not notice the post nor did he realize a sign had ever been there.

The Town of Hull contends the trial court erred in denying its motion to dismiss the cross complaints against it. It is argued Jordan road is not a duly established arterial or through highway because sec. 349.07(3) and (4), Stats., requires a local authority to declare a highway or portion thereof a through highway by ordinance or resolution and such ordinance or resolution is not effective until offical stop signs or traffic control signals have been installed. The record discloses no ordinance or resolution, formal or informal, declaring Jordan road to be a through highway. However, the town board did approve an oral motion to erect stop signs under sec. 349.08(5), Stats., which permits towns to put up additional stop signs on a roadway at its discretion.

The Town of Hull contends this section authorizes it not only to place additional stop signs on roadways but also to remove such signs whenever it thinks they are no longer necessary. Assuming this is true the signs were not removed by the town because they were no longer considered necessary but by vandals. No statute or decision in Wisconsin up to now has held it to be a duty of a town to maintain stop signs once they have been erected under sec. 349.08(5), Stats. This duty is asserted not as a statutory duty to repair defects in highways but as a common-law duty actionable since governmental immunity was abolished by Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618.

The trial court was of the view that 'Having effectively and practically established Jordan Road an arterial highway at the Dobeck Road intersection by having the official stop signs in position for over five years, the Town of Hull was charged with the duty of maintaining the stop signs so as to avoid a trap for motorists.' The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public who has the right to rely on its presence. See Vande Walker v. State of New York (1938), 278 N.Y. 454, 17 N.E.2d 128; Nuss v. State of New York (1950), 301 N.Y. 768, 95 N.E.2d 822; and the dissent of Chief Justice Desmond in Weiss v. Fote and City of Buffalo (1960), 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63. This duty is analogous to the liability of railroads for failure to have flagmen stationed at crossings where they ordinarily were present. Bluhm v. Byram (1927), 193 Wis. 346, 214 N.W. 364; Burns v. North Chicago Rolling Mill Co. (1886), 65 Wis. 312, 27 N.W. 43. The town may remove the stop sign if it provides fair warning to the public of the removal. See Martinson v. Polk County (1938), 227 Wis. 444, 279 N.W. 60; Bills v. Town of Kaukauna (1896), 94 Wis. 310, 68 N.W. 992.

The potentiality of a dangerous situation is greatly increased by the failure to maintain warnings upon which the public has come to rely. It is the creation of the right of reliance and its protection which is the basis of the duty. This is not unlike the doctrine of equitable estoppel in the field of contracts. We find no error in the trial court's refusing to dismiss the cross complaints on the ground the Town of Hull was not negligent as a matter of law.

Instead of submitting the question of negligence of the Town of Hull to the jury the trial court found negligence as a matter of law. This is claimed to be error. Since the Town of Hull had the duty to maintain the stop sign once it undertook to erect it, its failure to replace it would be negligence as a matter of law if the town had sufficient notice to remedy the situation. On August 7 the town had actual knowledge the stop sign was missing and 19 days elapsed to the date of the accident. This time was sufficient to constitute an unreasonable delay in replacing the sign or in taking other precautions by warning or temporary signs to inform the traveling public of the danger. We find no error in the trial court finding the Town of Hull negligent as a matter of law.

It is also contended the court erred in refusing to change the answer in the verdict finding the negligence of the Town of Hull causal. It is argued the court's answering the negligence question unduly influenced the jury in its consideration of the causality of such negligence and the finding was based on speculation. The record does not show the jury was influenced by the court's findings. The court properly instructed the jury that its answering the negligence question should have no bearing whatsoever on what the answer should be to the other questions. The same contention has been made in other cases where this court has pointed out the problem. Field v. Vinograd (1960), 10 Wis.2d 500, 103 N.W.2d 671; Niedbalski v. Cuchna (1961), 13 Wis.2d 308, 108 N.W.2d 576. Whether the jury was unduly influenced in determining the apportionment of the negligence will be discussed later.

The Town of Hull argues in view of the speed of the respective cars and other circumstances including the trees southwest of the intersection the accident was inevitable and the fact the stop sign was missing could not be causal. The difficulty with this argument is it disregards the probability that the speed at least of the Rombalski car would have been...

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