Henthorn v. M. G. C. Corp.

• Decision Date: 04 June 1957
• Citation: 83 N.W.2d 759,1 Wis.2d 180,79 A.L.R.2d 142
• Parties: , 79 A.L.R.2d 142 Earl HENTHORN, Plaintiff-Respondent, v. M. G. C. CORPORATION, a Wis. corporation, Defendant-Appellant, London & Lancashire Indemnity Co., a foreign insurance corporation, Defendant-Respondent and Appellant.
• Court: Wisconsin Supreme Court

Page 759

83 N.W.2d 759

1 Wis.2d 180, 79 A.L.R.2d 142

Earl HENTHORN, Plaintiff-Respondent, v. M. G. C. CORPORATION, a Wis. corporation, Defendant-Appellant London & Lancashire Indemnity Co., a foreign insurance corporation, Defendant-Respondent and Appellant.

Supreme Court of Wisconsin.

June 4, 1957.

Rogers & Owens, Portage, for M. G. C. Corp.

Schubring, Ryan, Petersen & Sutherland, Madison, Richard Pfeil, Elkhorn, for London & Lancashire Indem. Co.

Rieser, Mathys, McNamara & Stafford, Madison, Philip Arneson, La Crosse, for plaintiff-respondent.

CURRIE, Justice.

The following issues are raised on this appeal:

(1) Is there any credible evidence to sustain the jury's finding of causal negligence on the part of Hollis, driver of the M. G. C. unit?

(2) Was the plaintiff Henthorn causally negligent as a matter of law?

(3) Did the trial court err in refusing to submit a question as to Henthorn's management and control?

(4) Did the trial court err in excluding certain expert testimony offered by defendants?

(5) Did the filing of an SR-21 by defendant insurance company make it liable upon its policy to the extent of the limits of such policy?

In order to pass on the first three of the above five issues it is necessary to review the pertinent evidence bearing on how the accident occurred. In view of the fact that the plaintiff won a verdict below we must consider such evidence from the standpoint most favorable to the plaintiff. Zang v. Schumann, 1952, 262 Wis. 570, 574, 55 N.W.2d 864.

At the point where the accident occurred the highway had a 22 foot wide blacktop pavement with soft, muddy shoulders approximately five to six feet in width. Beyond such shoulders was a shallow ditch. The highway here was straight and comparatively level and ran in a generally northerly and southerly direction. All witnesses testified to the bad driving conditions which prevailed that night as there was a fog and slippery pavement. Henthorn conceded that the fog made it treacherous driving although he testified that the fog was in patches and that back one mile and a half from the scene of the accident he had been able to see two vehicles parked at the side of the road when 250 feet distant from them. Several witnesses testified as to the pavement being covered with ice, including the deputy sheriff who arrived at the scene of the accident shortly after it occurred. Henthorn stated that he did not know whether the pavement was icy but admitted that at least it was wet and slippery. The heavy tractor-trailer unit operated by Henthorn was loaded with 29,000 pounds of steel.

As Henthorn approached the scene of the accident he saw a dark object blocking both the north and south traffic lanes of the pavement which looked to him like a barn. He immediately applied his foot brakes and then his hand brake and turned his unit to the right off the pavement and proceeded northerly with the left wheels on the shoulder and the right wheels in the shallow ditch. Before the collision occurred he recognized the object that he had sighted as being the left side of a trailer but did not see the the tractor portion of the M. G. C. unit. Henthorn thought that some part of his unit back of the front of the cab near the gas tank had 'hooked' the right rear corner of the M. G. C. trailer as it protruded onto the shoulder. However, the physical damage to the Briggs tractor disclosed that it was the left front of the Briggs tractor which struck the other unit. The Briggs tractor came to rest with the right portion of the tractor bumper up against a tree near the highway east fence line. Henthorn had been thrown out the left front door of the cab and was lying on the ground close to the rear of his unit. Hollis had also been thrown from the cab of the M. G. C. unit and was lying just to the rear of the upset M. G. C. trailer. He was fatally injured and died within a few minutes.

Parallel skidmarks made by the tires of the Briggs unit were found extending back southward from the front axle of the tractor 188 feet. The south end of these marks began in the northbound, or east, traffic lane of the pavement and extended northerly on the pavement for a distance of 15 feet. Then they veered sharply to the right, or east, off the pavement, and then extended northward up to the rear of the unit, the left marks being on the shoulder and the right ones in the ditch. The south 15 feet of such marks had been burned through the ice coating of the pavement.

Henthorn estimated that he had proceeded with the left wheels of his unit on the shoulder and the right wheels in the ditch approximately 180 feet when he struck the M. G. C. unit. There was no debris nor any marks on the shoulder to indicate such point of contact. It was defendants' theory that the point of impact occurred where the tire marks from the Briggs unit veered sharply off the pavement after proceeding northerly for a distance of 15 feet. Broken pieces of a mirror were found at such point, and after the accident it was discovered that the mirror located on the left side of the Briggs tractor cab had been broken. However, there was no identification of the broken pieces of the mirror lying on the pavement as having come from the broken mirror of the Briggs unit. It is undisputed that the right rear corner of the M. G. C. tractor was pushed forward five inches. In fact, the whole section along the right side of such trailer, which section was reinforced with heavy steel crosspieces, was pushed forward five inches, as was the fifth wheel of the trailer near the point where it was attached to the tractor. After the accident it was found that the shift lever of the M. G. C. unit's transmission was set in low gear and the ignition key turned off. There were no marks on the pavement to show that the unit had skidded prior to the collision. The testimony discloses no explanation of how the unit happened to be in the position crosswise on the highway which Henthorn testified it was at the time he first sighted it. Henthorn was positive that it was then stationary and not moving.

The defendants contend that because there is no evidence as to how the M. G. C. unit got in the position it was when first sighted by Henthorn, and how long it had been there, there is no evidence to support the finding that Hollis was negligent with respect to stopping his tractor-trailer on the highway. Furthermore, they point out that Hollis, as a deceased driver, is entitled to the presumption that he exercised due care. Sec. 85.19(1), Stats., makes it illegal for anyone to stop a motor vehicle on a highway, as was the M. G. C. unit. Sub. (8) of sec. 85.19 makes such prohibition inapplicable to a disabled vehicle. Defendants urge that it is possible that the M. G. C. unit skidded on the icy pavement without fault of Hollis, and thereby got into the position where it could not be moved forward or backward, even though there was no mechanical failure.

We deem that this is a proper case in which to invoke the principle of res ipsa loquitur as to whether there was negligence on the part of Hollis in stopping his unit where he did, accepting Henthorn's testimony as being true. In Wood v. Indemnity Ins. Co., 1956, 273 Wis. 93, 102, 76 N.W.2d 610, 614, this court stated:

'We are constrained to hold that in a situation where it ordinarily would be permissible to invoke the rule of res ipsa loquitur, such as the unexplained departure from the traveled portion of the highway by a motor vehicle, resort to such rule is not rendered improper merely by the introduction of inconclusive evidence giving rise to an inference that such departure may have been due to something other than the negligence of the operator.'

We are unable to distinguish an unexplained stopping of a motor vehicle on a highway from an unexplained departure from the highway. If res ipsa loquitur is applicable to one situation it ought to be equally applicable to the other. The presumption that a deceased driver exercised due care is not in itself evidence, but the fact of facts giving rise to invocation of the doctrine of res ipsa loquitur is evidence, although circumstantial in nature. If there is any evidence to go to the jury on an issue of negligence as to a deceased driver, then the presumption that he exercised due care passes out of the picture. Kreft v Charles, 1954, 268 Wis. 44, 52, 66 N.W.2d 618, and Atkinson v. Huber, 1955, 268 Wis. 615, 618, 68 N.W.2d 447.

The burden of proof to establish that the M. G. C. unit was a disabled vehicle under the provisions of sec. 85.19(8), Stats., was on the defendants. The evidence upon which they rely to establish that it was is inconclusive at best. Certainly it cannot be held as a matter of law that it was a disabled vehicle within the meaning of the statute.

We are, therefore, constrained to hold that we cannot disturb the jury's finding that Hollis was negligent with respect to stopping on the roadway.

Henthorn testified that before the collision he did not see the tractor of the M. G. C. unit nor the rear of the trailer. The evidence is in conflict on the issue...