Guderyon v. Wis. Tel. Co.

• Decision Date: 07 April 1942
• Citation: 2 N.W.2d 242,240 Wis. 215
• Parties: GUDERYON v. WISCONSIN TEL. CO. et al. (two cases).
• Court: Wisconsin Supreme Court

240 Wis. 215

2 N.W.2d 242

GUDERYON

v.WISCONSIN TEL. CO. et al. (two cases).

Supreme Court of Wisconsin.

Feb. 10, 1942.

Rehearing Denied April 7, 1942.

Appeal from judgments of the Circuit Court for Waukesha County; Edward J. Gehl, Circuit Judge.

Reversed; new trial directed.

Actions brought by Harold Guderyon on his own behalf and as executor of the estate of Mabel Guderyon, deceased, against the Wisconsin Telephone Company and its automobile liability insurer to recover damages sustained as the result of alleged negligence of the Telephone Company in parking a motor truck. Upon a trial of the issues under the pleadings, the court submitted questions in answer to which the jury returned a special verdict on which judgment was entered in each action for plaintiff's recovery of damages from the defendants. They appealed from the judgments.

Lockney, Lowry & Hunter, of Waukesha, for appellants.

Warren R. Jorgenson, of Hartland, and Jacobson, Malone & Hippenmeyer, of Waukesha, for respondent.

FRITZ, Justice.

The judgments under review are for damages sustained as the result of injury to Mabel Guderyon when an automobile, which she was driving northward on a highway, ran through a cloud of smoke and into a truck which Arthur Teske, an employe of the defendant, Wisconsin Telephone Company, had parked on the east side of the highway. At the time of the accident, a smoke cloud arising from a pile of burning brush was blown by a northeast wind across the highway so as to obscure the vision along the road. The jury found that the collision was caused by negligence of Teske in parking or stopping the truck (1) on the left side of the highway, (2) without leaving a clear and unobstructed width of no less than 15 feet upon the roadway opposite the truck for the free passage of other vehicles, (3) when it was practical to park or stop off the roadway, and (4) without leaving a clear view of the truck from a distance of 200 feet in each direction along the highway. The jury also found that Mabel Guderyon was not negligent in operating the automobile with respect to (1) lookout, (2) speed or (3) control and management. Motions by the defendants for a directed verdict and, subsequently, to have the court change the jury's findings in respectto Teske's negligence and the absence of negligence on the part of Mabel Guderyon, and for judgment on the verdict so amended, and also defendants' motion for a new trial were denied by the court; and judgment was entered against the defendants for plaintiff's recovery of damages assessed by the jury in each action.

Defendants' principal contentions are that there is no evidence to sustain the jury's findings of negligence on the part of Teske; and that the undisputed evidence clearly shows that he was not negligent in the matters found by the jury, but that Mrs. Guderyon was causally negligent, as a matter of law, in respect to lookout, control and management, and speed. In passing upon these contentions as to the sufficiency of the evidence to sustain the jury's findings, it must be given the most favorable construction in support of the findings that it will reasonably bear, including all reasonable inferences that may have been drawn therefrom by the jury in so finding. So construed the evidence reasonably admits of inferences to the following effect. On the afternoon of February 18, 1938, Teske, proceeding south upon the west half of the highway, drove the truck on to the east side of the roadway and parked it, facing south, completely on the east half of a 19 to 20 feet wide blacktop or traveled roadway of the highway, about opposite or within 6 feet north of a place where Charles Johnson, a farmer, and Francis Sheets, his hired man, were engaged in cutting and burning the brush. The road was practically level for 750 feet to the south and for several hundred feet to the north, and the average width of the shoulders, which were level with the roadway, was 2.3 feet on the east side and 2.8 feet on the west side. The nearest driveways were, respectively 1,048 feet to the north, and 363 feet to the south. There was a ditch 10 or 12 inches deep immediately east of the east shoulder, and beyond the ditch there was a level meadow upon which Johnson and Sheets were burning the brush. When Teske parked the truck, Johnson left his work and stood, with his hand upon the truck, and discussed with Teske, who remained seated in the truck, the trimming of the trees along the highway so as not to interfere with telephone wires. Meanwhile Sheets continued collecting brush and feeding the bonfire, which within 3 to 5 minutes caused a cloud of smoke to blow southwestward from the brush pile, which was about 8 feet across and 2 1/2 or 3 feet high, across the highway so as to almost completely obscure the view along the highway from the south toward the parked truck. The cloud of smoke crossing the highway was about 10 feet wide and 8 to 10 feet south of the front of the truck. The day was somewhat dark and cloudy, but it was not necessary to have the lights lit. Mrs. Guderyon, in approaching from the south at about 25 miles per hour, was driving on the east half of the blacktop roadway and, on passing through the cloud of smoke, crashed into the parked truck by striking about 3 1/2 to 4 feet of the right part of the front end thereof. Teske testified that when he parked the truck he had an unobstructed view for about 800 feet to the south; that he noticed that the smoke from the burning brush pile had started to blow across the roadway for about 15 seconds before he saw Mrs. Guderyon's car approaching from the south on the east side of the highway; that when he first saw the car she was 100 feet to the south of him and all he could see through the smoke was the top of the car and about a foot of the windshield, and this condition had existed for at least 15 seconds before the collision; and that when he saw the car 100 feet to the south he “tried to shove into reverse, but didn't have time before she hit me,” and that there were no skid marks from the Guderyon car that he could see. Johnson, who was standing north of the bonfire, testified that Sheets had thrown some brush on the fire and that it made a puff of smoke that came over just as the Guderyon car came along, and that he did not see the Guderyon car until it was 4 to 6 feet away; but Sheets testified that he saw the car when it turned the curve about 500 feet to the south and that he watched it all the way up until the collision occurred, excepting that he lost sight of it while it was passing through the smoke.

Defendants' contention that the evidence does not sustain the jury's finding that Teske was negligent in parking or stopping the truck without leaving a clear and unobstructed width of no less than 15 feet upon the roadway for the free passage of other vehicles thereon, in violation of sec. 85.19(1), Stats., is based on the claim that under this statute the shoulder on the west side of the road, which was frozen and in good condition, should have been considered as a part of the roadway of the highway, and that so considered there was an unobstructed width of more than 15 feet upon the roadway opposite the truck. This claim and the contention based thereon cannot be sustained. The shoulders are not to be included in computing the width under the provision in sec. 85.19(1), Stats., which requires “a clear and unobstructed width of no less than fifteen feet upon the roadway of such highway.” In this respect the provision reads: “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”; and in sec. 85.10, subsec. (21) (e), the word “roadway” is defined as being, “that portion of the highway between the regularly established curb lines or that portion which is commonly used by vehicular traffic.”

Consequently, as the shoulder is not commonly used by vehicular traffic, it cannot be included as part of the roadway upon which there must be left a clear and unobstructed width of no less than 15 feet for the free passage of vehicles thereon. The decisions in United Paper Corp. v. Lietz, 198 Wis. 278, 223 N.W. 843, and Long v. Steffen, 194 Wis. 179, 215 N.W. 892, 893, 61 A.L.R. 1155, upon which defendants rely as holding that the shoulder when usable can be computed as part of the highway, are no longer in point. They were decided under former sec. 85.02, Stats., which differed in that the requirement read: “In all cases there shall be left free and usable passageway of at least eighteen feet * * *.” The meaning of the term “usable passageway” as used in this former provision has not the same meaning as the word “roadway”, which as used in sec. 85.19(1), Stats., is defined in sec. 85.10(21) (e), Stats., as that portion of a highway which is “between the regularly established curb lines” or “which is commonly used by vehicular traffic.” See Reykdal v. Miller, 216 Wis. 561, 257 N.W. 604;Bohlmann v. Penn Electric Corp., 232 Wis. 232, 286 N.W. 552;Callaway v. Kryzen, 228 Wis. 53, 279 N.W. 702.

Defendants' contention that the evidence does not sustain the jury's finding that Teske was negligent in parking or stopping the truck when it was practical to park or stop off the roadway is based upon their claim that it was not practical for a mere temporary stop to park the truck off the roadway by driving to the nearest driveways which were, respectively, 1,048 feet to the north, and 363 feet to the south, or by driving across the 10 to 12 inch ditch. This claim and the contention based thereon likewise cannot be sustained. Under the evidence as to the nature and weight of the truck and the frozen condition of the east shoulder and the adjacent meadow, which were level except for the...