Jeffers v. Peoria-Rockford Bus Co.

• Decision Date: 05 February 1957
• Docket Number: PEORIA-ROCKFORD
• Citation: 274 Wis. 594,80 N.W.2d 785
• Parties: James JEFFERS, Appellant, v.BUS CO., a foreign corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 785

80 N.W.2d 785

274 Wis. 594

James JEFFERS, Appellant, v. PEORIA-ROCKFORD BUS CO., a foreign corporation, Respondent.

Supreme Court of Wisconsin.

Feb. 5, 1957.

Moss & Wickhem, Janesville, for appellant.

Jeffris, Mouat, Oestreich, Wood & Cunningham, Janesville, for respondent.

CURRIE, Justice.

The three principal issues on this appeal are:

(1) Was there any statutory duty imposed upon the bus driver which required that he pull over onto the extra paved fourth lane at the right side of the highway when he attempted to make his stop for the railroad spur track?

(2) If there was such duty, was the bus driver's negligence, in failing to perform it not a proximate cause of the collision as a matter of law?

(3) If there was causal negligence on the part of the bus driver, was the negligence of the plaintiff as a matter of law at least equal to that of the bus driver?

The action was submitted to the jury on the theory that subs. (1) of sec. 85.19, Stats. was the governing statute and the briefs of counsel are silent as to whether subs. (2) of such statute has any application to the facts of this case. The material portions of such two subsections read as follows:

'(1) 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 * * *.

'(2) Parking on Streets. (a) No person shall park, stop, or leave standing any vehicle, whether attended or unattended, upon any street unless parallel to the edge of the street, headed in the direction of traffic, on the right side of the street, and with the right wheels of the vehicle within twelve inches of the curb or edge of the street except as provided in paragraphs (b) and (c) [which two paragraphs have no application to the instant case].'

Subs. (21)(b) of sec. 85.10 defines a 'street' as 'every highway except alleys within the corporate limits of any city or village'. Plaintiff's complaint alleged that the point at which Highway 51 is crossed by the spur track is 'inside and to the south of the north city limits of said Beloit', and this allegation stands as a verity because it is not denied in defendant's answer.

Neither party adduced any competent evidence as to whether the place where the collision occurred was within or outside of a business or residence district. After both sides had rested the trial court at the request of plaintiff's counsel, and over the objection of defendant's attorneys, took judicial notice of the fact that such place was outside of a business or residence district. While the learned trial judge undoubtedly had personal knowledge that the particular area here involved was neither a business nor a residence district, it was nevertheless error for him to have taken judicial knowledge thereof merely because he as a person knew it to be so. Courts should only take judicial notice of facts which lie 'within the broad field of subjects of general knowledge'. Kuder v. State, 1920, 172 Wis. 141, 145, 178 N.W. 249, 250. Therefore, if the jury's finding of causal negligence against the bus driver is to be permitted to stand, it necessarily must be because of the provisions of subs. (2), and not subs. (1), of sec. 85.19, Stats.

In instructing the jury with respect to the question which inquired as to whether the bus driver was negligent in respect to the place where he made or was making a stop, the trial court informed the jury of the substance of the material portion of subs. (1) of sec. 85.19 without referring to the same by number. We consider that such instruction was more favorable to defendant than if the trial court had informed the jury of the substance of subs. (2) of sec. 85.19. This is because under the instruction given the jury were only to find the bus driver negligent for not pulling off onto the extra west, or fourth, lane if they determined it was 'practical' for him to have stopped off the commonly traveled portion of the highway. The 'practical' qualification contained in subs. (1) is omitted from subs. (2) of sec. 85.19. We, therefore, do not deem the instruction given was prejudicial to the defendant.

The defendant contends that irrespective of the issue relating to the taking of judicial notice, subs. (1) of sec. 85.19 has no application to the facts of the instant case. It is urged that such subsection did not require the bus driver to pull over into the extra fourth lane to make his stop for the spur track because such stop was intended to be a momentary one made in the exercise of safety precautions. Such argument would apply with equal force to the provisions of subs. (2) of sec. 85.19 inasmuch as both subsections employ the words, 'No person shall park, stop, or leave standing any vehicle, whether attended or unattended'. Subs. (30) of sec. 85.10, Stats., defines parking as 'The stopping or standing of a vehicle, whether occupied or not, upon a highway otherwise than in obedience to traffic regulations or official traffic signs or signals'.

It is conceded that there was no traffic regulation, sign or signal which required the bus to stop for the spur track. Subs. (2) of sec. 85.92, Stats., which requires certain motor vehicles, including passenger buses, to come to a full stop before crossing at grade the mainline tracks of any railroad, has no application to spur tracks.

Defendant's brief cites the case of Reuhl v. Uszler, 1949, 255 Wis. 516, 39 N.W.2d 444, as holding a momentary stop is not a violation of subs. (1) of sec. 85.19. In that case a Rev. Kuhlow came over a hill and met a funeral procession proceeding in the opposite direction. He pulled partly off the traveled portion of the highway and stopped to pay his respects to the deceased. The portion of his car remaining on the traveled roadway effectively blocked its use by other vehicles proceeding in the same direction as Rev. Kuhlow. Plaintiff came over the hill and stopped his automobile with all four wheels on the pavement immediately to the rear of the Kuhlow car. Then the defendant Uszler, also traveling in the same direction, came over the hill and crashed into plaintiff's car forcing it ahead into the Kuhlow vehicle. This court held that sec. 85.19(1) was never meant to apply to persons in the position of the plaintiff Reuhl, but Rev. Kuhlow was held to be negligent even though his stop could well be held to be momentary in character.

There is a sound reason why the plaintiff Reuhl was held not to have violated sec. 85.19(1). If the highway is blocked so that no one can travel ahead, it is...