Hillside Garage & Transit Co. v. Pflittner

• Decision Date: 05 November 1929
• Citation: 227 N.W. 282,200 Wis. 26
• Court: Wisconsin Supreme Court
• Parties: HILLSIDE GARAGE & TRANSIT CO. v. PFLITTNER ET AL.

200 Wis. 26

227 N.W. 282

HILLSIDE GARAGE & TRANSIT CO.

v.PFLITTNER ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Circuit Judge.

Action by the Hillside Garage & Transit Company against Edward C. Pflittner and others. Judgment for defendants, and plaintiff appeals. Affirmed.--[By Editorial Staff.]

Action begun October 1, 1928. Judgment entered January 21, 1929.

Action to recover damages to plaintiff's truck, which, while being driven by plaintiff's employé, collided with a trailer, 11 1/2 feet wide, which the defendants were hauling along a state highway, without having procured the special permit required by section 85.18(4), Stats., before operating on any highway a vehicle over 8 feet wide.

The jury found (1) that the collision was caused by the fact that the trailer was over 8 feet wide; (2) that a part of the trailer was to the left of the center of the road; (3) that defendants' driver ought to have foreseen that having part of the trailer over the center of the road might probably cause injury; and (4) that negligence of plaintiff's driver, in failing to keep a proper lookout, contributed to cause the collision. Because of that finding of contributory negligence, judgment on the verdict was ordered and entered, dismissing the complaint. Plaintiff appealed from that judgment.Hoyt, Bender, Trump, McIntyre & Hoyt, of Milwaukee, for appellant.

Louis J. Fellenz, of Fond du Lac, for respondents.

FRITZ, J.

Plaintiff contends that section 85.18(4), Stats., was enacted for the purpose of protecting life and limb of persons; that, consequently, because of defendants' violation of that statute, they are guilty, as a matter of law, of willfully injuring another, or of gross negligence; and that, therefore, contributory negligence of plaintiff's driver does not bar plaintiff's recovery of damages. That contention is based on the cases of Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803, and Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84.

These cases, as this court said in Ludke v. Burck, 160 Wis. 440, 443, 152 N. W. 190, 191, L. R. A. 1915D, 968: “Dealt with statutes prohibiting the sale of firearms and the employment of minors under 16 years of age in certain specified employments. The doctrine of these and similar cases is that the violation of these statutes is of such gravity that public policy requires, in the interest of protecting life and limb, that persons violating them be held to strict accountability for the consequences flowing therefrom, regardless of the fault of the injured person, and therefore the persons violating them, and thereby producing personal injuries to another, were to be treated as guilty of willfully injuring another, as matter of law.”

On the other hand, in Ludke v. Burck, supra, the question under consideration was whether or not contributory negligence was available as a defense in an action for personal injury alleged to have been caused by a defendant who negligently drove his automobile in excess of the statutory speed limit. This court then held that the principle which denied the defense of contributory negligence to the violator of such penal statutes as were involved in Pizzo v. Wiemann, supra, and Pinoza v. Northern Chair Co., supra, did not apply where a statute prohibits something innocent in itself, but made unlawful, and the violation thereof penalized to compel a higher standard of care as regards persons and property. The court concluded that the statute then in question was of that latter class, and that regulations to restrict the operation of motor vehicles on streets to such ways as will lessen the dangers to travelers from high speed and other hazardous practice “are not intended to abrogate the duties of travelers recognized by the common law for their mutual safety, and leaves them subject to its accepted rules of ordinary care and the duties that spring from their relations as travelers, on a public highway.” Ludke v. Burck, supra, page 444 of 160 Wis., 152 N. W. 190, L. R. A. 1915D, 968.

Following Ludke v. Burck, supra, penalized violations of various statutory traffic regulations have been held not to deprive the violator of the defense of contributory negligence. Zimmermann v. Mednikoff, 165 Wis. 333, 162 N. W. 349;Kadolph v. Herman, 166 Wis. 577, 166 N. W. 433;Yahnke v. Lange, 168 Wis. 512, 170 N. W. 722;Foster v. Bauer, 173 Wis. 231, 180 N. W. 817;Hopkins v. Droppers, 184 Wis. 400, 198 N. W. 738, 36 A. L. R. 1156;Bentson v. Brown, 186 Wis. 629, 203 N. W. 380, 38 A. L. R. 1417. See, also, ...