Jennings v. Mueller Transp. Co.

• Decision Date: 08 February 1955
• Citation: Jennings v. Mueller Transp. Co., 268 Wis. 622, 68 N.W.2d 565 (Wis. 1955)
• Parties: Bessie JENNINGS, Adm'x of the Estate of Raymond Lee Jennings, deceased, et al., Respondents, v. MUELLER TRANSPORTATION CO., a foreign corporation et al., Appellants.
• Court: Wisconsin Supreme Court

Page 565

68 N.W.2d 565

268 Wis. 622

Bessie JENNINGS, Adm'x of the Estate of Raymond Lee Jennings, deceased, et al., Respondents, v. MUELLER TRANSPORTATION CO., a foreign corporation et al., Appellants.

Supreme Court of Wisconsin.

Feb. 8, 1955.

Rehearing Denied April 5, 1955.

Action by the plaintiff Bessie Jennings, administratrix of the estate of Raymond Lee Jennings, deceased, to recover for the wrongful death of her deceased husband arising out of a motor vehicle collision against the defendant Mueller Transportation Company, Casualty Reciprocal Exchange (insurance carrier for Mueller) and Herbert N. Ranheim (Mueller's driver).

The accident occurred approximately at 2 a. m., on June 10, 1953, on highway 51 in Dane county, a mile or so south of its intersection with highway 12. The defendant Ranheim was driving Mueller's tractor-trailer unit consisting of a trailer pulling a large, closed van-type trailer, the overall length of the unit being 41 feet. By mistake he turned south at the aforesaid intersection instead of turning north. Upon discovering his mistake he attempted to turn around by making use of a farm driveway, which extended to the east of highway 51, by backing into such driveway. He had proceeded with such backing operation to the point where the trailer was wholly across and practically at right angles to highway 51. The right wheels of the tractor were then off on the shoulder some little distance to the west of the west edge of the pavement. At this point in the backing operation the right front wheel of the tractor dropped down over the west edge of the top of a concrete abutment of a cattle pass running underneath the highway. As a result of such right wheel so dropping off the edge of the abutment, the unit was rendered immovable. Ranheim put out fusees to the north and south of the stalled unit but the evidence is in conflict as to whether the single fusee placed to the south had burned out by the time the collision occurred. The point on highway 51 where the tractor-trailer unit was stalled was on an incline extending from north to south with the crest of the knoll or hill approximately 200 feet to the south of the unit.

Plaintiff's intestate (hereinafter referred to as Jennings) was driving a truck in a northerly direction on highway 51, and approximately twenty minutes after the tractor-trailer unit had become stalled came over the crest of the hill to the south of such stalled vehicle. Upon seeing the stalled unit barring the highway, Jennings attempted to drive his truck off the pavement to the right so as to get around to the east of the stalled vehicle. However, he failed in this attempt, a collision occurred, and Jennings was killed.

The action was tried to a court and a jury. A special verdict was returned in which the jury found both Ranheim and Jennings causally negligent and apportioned 85 per cent of the aggregate negligence to Ranheim and 15 per cent to Jennings.

Judgment was rendered upon this verdict in favor of the plaintiff administratrix and against the defendants. From such judgment the defendants have appealed.

Schubring, Ryan, Petersen & Sutherland, Madison, for appellants.

Frank M. Coyne, Madison, for respondents.

CURRIE, Justice.

Question 1 of the special verdict read as follows:

'At and just prior to the time of the accident in question was Herbert N. Ranheim negligent in the operation of his vehicle in the following respects:

'(a) In respect to the manner and place of turning of his vehicle around upon the highway?

'(b) In respect to parking, stopping or leaving his vehicle standing upon the highway?

'(c) In respect to leaving a clear and unobstructed view of his vehicle for 200 feet in each direction?

'(d) In respect to leaving less than 15 feet of clear and unobstructed passageway upon the highway to the left of his vehicle?

'(e) In respect to giving an adequate warning to the deceased, Raymond Lee Jennings, of the presence of his, Ranheim's vehicle upon the roadway?'

The jury answered all five subdivisions of the question 'yes', and also answered 'yes' to each of the five corresponding subdivisions of the ensuing causation question.

Such question 1 of the special verdict, including its five subdivisions, was submitted to the jury by the learned trial court pursuant to written request of plaintiff's counsel. Counsel for the defendants made timely objection to the inclusion of subdivisions (b), (c), and (d) of question 1. The grounds for this objection were that inasmuch as such three subdivisions had reference to the provisions of sec. 85.19(1), Stats., ¹ the provision of sec. 85.19(8), Stats., rendered them inapplicable on the basis of the undisputed facts of this case. Sec. 85.19(8), provides:

'The provisions of this section shall not apply to the operator of any vehicle which is disabled while on the highway in such a manner or to such extent that it is impossible to avoid stopping or temporarily leaving such vehicle in such position.'

Before the collision occurred, at least two trucks had arrived from the north and stopped and the operators had gotten out and inspected the Mueller stalled combination unit blocking the paved portion of highway 51. It was the testimony of these other truckers, as well as of Ranheim, that the stalled unit could not be removed from the highway under its own power, or with the assistance of the persons then present, and that a wrecker was required for such purpose. Ranheim had gone to the nearest farmhouse in an attempt to telephone to secure the services of a wrecker when the collision occurred. We, therefore, deem the stalled unit to have been a 'disabled' vehicle within the meaning of sec. 85.19(8), Stats., and that it was error to submit subdivisions (b), (c), and (d) of question 1 of the special verdict to the jury. The negligence of Ranheim was in the manner and place of turning the combination unit, and not in stopping or parking the same. Such stopping was entirely involuntary because it was the result of becoming disabled in the turning operation.

Counsel for plaintiff cites several cases in support of his contention that subdivisions (b), (c), and (d) of question 1 were properly submitted, including Puccio v. Mathewson, 1951, 260 Wis. 258, 50 N.W.2d 390; Yanisch v. American Fidelity & Casualty Co., 1950, 257 Wis. 462, 44 N.W.2d 267; and Bornemann v. Lusha, 1936, 221 Wis. 359, 266 N.W. 789. An examination of the decisions in these three cases, however, discloses that none of them support such contention.

The case of Puccio v. Mathewson, supra [260 Wis. 258, 50 N.W.2d 394], involved a passenger automobile which was damaged in a collision with another vehicle and then subsequently was struck by a third vehicle with some little lapse of time occurring between the two collisions. The testimony was in dispute as to whether the first mentioned vehicle had been removed off the traveled portion of the highway following the first collision, but the jury determined in effect that it had not by finding the operator negligent with respect to moving the same 'from the roadway immediately following the first collision'. As pointed out in the opinion, there was no evidence that the car was so damaged that it could not have been moved following the first collision. This is in direct contrast with the undisputed testimony in the instant case, that the stalled truck could not be removed from the highway except by the means of a wrecker.

The fact situation in Yanisch v. American Fidelity & Casualty Co., supra, is strikingly similar to that of the case at bar. In the Yanisch Case, the operator of a tractor-trailer unit found he was traveling in the opposite direction from which he desired to go and attempted to turn the unit around on the highway, but in doing so it became stalled in the snow, with the unit blocking a considerable portion of the highway. A collision then occurred as the result of a...