Kleist v. Cohodas

• Decision Date: 08 May 1928
• Citation: 219 N.W. 366,195 Wis. 637
• Parties: KLEIST v. COHODAS ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 637

219 N.W. 366

KLEIST

v.COHODAS ET AL.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Municipal Court for Outagamie County; Theodore Berg, Judge. Reversed.

This action was commenced by plaintiff April 12, 1927, against the individual defendants, copartners, and the United States Fidelity & Guaranty Company, a foreign corporation, to recover for injuries resulting from plaintiff's automobile colliding with a truck of the copartners, November, 1926. Trial was had June 3d, and upon the verdict judgment was entered July 9, 1927, for the amount thereof $5,550. Defendants appeal.

The material facts concerning which there is substantially no dispute are: That after dark of November 16, 1926, the driver of defendants' two-ton truck stopped the same on the right-hand side of an 18-foot concrete highway near Appleton. The body of the truck was 7 to 8 feet high, with a 6-foot box covered with brown canvas, and with a dark curtain hanging down the back, and its surface quite muddy. The kerosene tail-light was not yet lighted, nor the front lights, at which the driver was engaged at the time of the collision. The night was dark, and the snow quite heavy. Plaintiff, driving his Chevrolet coupé northeasterly on this highway, stopped at an arterial crossing two blocks below the place, and then proceeded onward at 20 to 23 miles per hour. He did not see the unlighted truck until 5 or 6 feet away from it, giving as a reason for not seeing it before then that the color of the truck was practically the same as the atmosphere.

He saw the lower part of the wheels of the truck first; there were no cars coming from the opposite direction; the lights on his car showed at least 20 feet ahead; and his speed was such that he was unable to stop after seeing the truck.

By special verdict the jury found the truck driver was guilty of want of ordinary care in so parking the truck, and that such was the proximate cause of the injury, and assessed damages to the automobile of $550, and to plaintiff of $5,000. They also found that there was not a failure to exercise ordinary care in the operation by plaintiff of his automobile: (a) With respect to having it under proper control; (b) with respect to keeping a proper lookout for other vehicles.

Defendants requested a special verdict after the plaintiff rested his case, and made a motion for a directed verdict at the close of the testimony, and afterwards moved to change the answers to the questions as to defendants' negligence being the proximate cause of the injury and as to plaintiff's contributory negligence.

Benton & Bosser, of Appleton (Lines, Spooner & Quarles, of Milwaukee, of counsel), for appellants.

Morgan & Johns, of Appleton, for respondent.

ESCHWEILER, J.

Upon the undisputed facts in this case, we are of the opinion that judgment should have been entered in favor of defendants dismissing the complaint.

At the time of the accident, the state law of the road, subsections 1 and 2, § 85.13, forbade, from 30 minutes after sunset until 30 minutes before sunrise, any automobile or motor vehicle to be driven upon or occupy any public highway in this state unless such motor vehicle is provided “with sufficient lights, of such design and so adjusted and operated as to render the use of the highway by such vehicles safe for all the public,” and “(2) the minimum requirements for head lamps on any automobile or other similar motor vehicle, except motorcycles, while being driven upon the highway, shall be such as to enable the driver to clearly distinguish a person, vehicle or other substantial object two hundred feet ahead, and the design, adjustment and operation of such head lamps shall be such as to avoid dangerous glare or dazzle.”

By subsection 3 of section 85.22, Stats., prescribing penalties in the same chapter, it was provided that a person violating section 85.13, supra, shall be fined not less than $5 nor more than $100 or imprisoned not less than ten days nor more than three months, or both.

Not here determining whether the driver of defendants' truck violated the provisions of section 85.02 prohibiting the parking on highways so as to interfere with the free passage of vehicles on such highway, except when making absolutely necessary repairs, or section 85.12, prohibiting the unreasonable obstructing or impeding by one of the right to travel on the same highway by another, or some common-law duty towards the plaintiff, we are compelled to hold that the plaintiff's own conduct was a violation on his part of the duty imposed upon him by law, and that it had a direct causal connection with the injury, so as to prevent his right to recover.

We are so holding upon what we consider has been for some time the public policy of the state based upon the many precise and particular statutory regulations and the rules of law as declared in former decisions of this court which, though often and vigorously challenged to be overruled or repudiated, we must still decline so to do, and feel still bound to follow.

The rule under which we are reversing this case and directing the judgment for the defendants is that very distinctly and squarely declared in the case of Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30. In that case the plaintiff drove his automobile at 10 o'clock on a dark, rainy night, the car carrying but one headlight, so arranged at that time that the driver could not see objects, more than 10 or 12 feet ahead of him, and proceeding at a speed not over 8 miles per hour, but such that he could not bring the machine to a standstill within less than 15 or 20 feet. The injury was caused by his driving into an opening on the highway 9 feet long and 8 feet wide dug for a culvert; no lights were placed there, and it was protected only by a single 16-foot fence board extending across and at about the height of four feet. It was there directly held (page 60 ) that, operating an automobile under the conditions presented that night, he was not exercising the ordinary care required of him, if he drives the car at such a speed that he cannot bring it to a standstill within the distance that he can plainly see objects or obstructions ahead of him; that, if his light be such that he can see objects for only a distance of 10 feet, then he must so regulate his speed as to be able to stop within that distance, and, if he fails to do so, and an accident results from such failure, no recovery can be had; that such is, “the minimum degree of care that should be required.” This was declared to be the rule independent of the then statute as to lights, infra. The Lauson Case also refused to countenance a proposition there urged that the lights on such vehicles are required only for a protection to travelers other than those riding in the vehicle itself. Page 61 (123 N. W. 629). It also expressly recognized the law theretofore held as to driving horses over a highway on a dark night without lights, pointing out that such an animal will ordinarily follow a traveled track or stop when a barrier is reached, but that such rule could not apply to automobiles.

The Lauson Case was decided in December, 1909. It was cited and recognized in Anderson v. Sparks (April, 1910) 142 Wis. 398, 125 N. W. 925, as controlling on the question of the exercise of ordinary care by the defendant there in driving his automobile where he ran into the plaintiff who had stopped his horse a short distance ahead; the defendant claiming that even with his lights he could not see the plaintiff within stopping distance. Page 405 (125 N. W. 925). It was referred to in Brown v. M. E. R. & L. Co. (January, 1912) 148 Wis. 98, 103, 133 N. W. 589. It was expressly the ground for a similar holding in Pietsch v. McCarthy (January, 1915) 159 Wis. 251, 254, 150 N. W. 482. In Raymond v. Sauk County (April, 1918) 167 Wis. 125, 128, 166 N. W. 29, L. R. A. 1918F, 425, it was cited as stating the recognized rule. It was cited and distinguished as to the facts presented in Zimmer v. Schmitt (May, 1918) 167 Wis. 430, 434, 167 N. W. 739, a case involving the running into a soft spot on a city street caused by the filling of a trench. In Yahnke v. Lange (February, 1919) 168 Wis. 512, 515, 170 N. W. 722, it was declared controlling on the question of defendant's negligence, where driving in violation of the then statute as to lights, and where plaintiff was denied recovery because he in turn was driving his milk wagon without the rear light...