Mann v. Reliable Transit Co.

• Decision Date: 05 March 1935
• Citation: Mann v. Reliable Transit Co., 217 Wis. 465, 259 N.W. 415 (Wis. 1935)
• Parties: MANN v. RELIABLE TRANSIT CO. ET AL.
• Court: Wisconsin Supreme Court

217 Wis. 465

259 N.W. 415

MANN

v.RELIABLE TRANSIT CO. ET AL.

Supreme Court of Wisconsin.

March 5, 1935.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge.

Affirmed.

This action was commenced on September 10, 1931, by the plaintiff, Herman F. Mann, to recover damages from the defendants, Reliable Transit Company, Sprout Cartage Company, and John Skurdanis, resulting from an automobile collision. Trial was had to the court and a jury. The jury found that the defendant Skurdanis was negligent in parking his truck on the highway, in failing to maintain proper tail-lights on his truck, and in failing to signal (warn) approaching vehicles as to the presence of his truck upon the highway; that his negligence in each of such respects was a cause of plaintiff's loss and injuries. The jury also found that the driver of the Sprout Cartage Company truck was negligent in stopping his truck upon the highway and that such negligence was a cause of the plaintiff's loss and injuries. The jury further found that the plaintiff was not negligent as to speed or lookout. From a judgment in favor of the plaintiff, entered January 17, 1934, the defendants Reliable Transit Company and John Skurdanis appealed.

Bender, Trump & McIntyre, of Milwaukee (Eugene L. McIntyre, of Milwaukee, of counsel), for appellants.

Pellette & Zillmer, of Milwaukee (John M. Redford, of Milwaukee, of counsel), for respondent.

NELSON, Justice.

Both defendants assert that the court erred in refusing to grant their motions for a nonsuit, in refusing to grant their motions for a directed verdict, in refusing to grant their motions after verdict, and in awarding judgment against them. The errors assigned by both defendants are based upon the contention that the plaintiff was guilty of negligence as a matter of law in respect to lookout and speed. Additional error is assigned by the defendant Reliable Transit Company based on the contention that Skurdanis was not its agent but was an independent contractor. The contentions require consideration of the facts.

[1][2] On April 21, 1931, some time between 1 and 1:30 o'clock a. m., the plaintiff was driving his automobile north on United States Highway 41. The night was dark and it was raining hard. The lights of plaintiff's automobile were in first-class condition. At a point about a mile north of the village of Truesdale, where the highway was straight and level, the plaintiff ran into the rear of a truck belonging to the defendant Skurdanis which was stalled upon the highway. As a result of the collision the plaintiff's automobile was badly damaged and the plaintiff was injured. At the time of the accident a truck belonging to the Sprout Cartage Company was stopped on the left side of the highway, headed south, almost opposite the other truck. There was evidence to the effect that the lights of the Sprout truck were turned on full force. The plaintiff testified that prior to the accident he was maintaining a speed of about 35 miles per hour, but slowed down to 20 or 25 miles as he approached the Sprout truck; that he thought that the Sprout truck was moving towards him; that it was so dark that he could not see objects in the distance which would have assisted him in observing whether the Sprout truck was moving or stopped; that as he approached the Sprout truck his vision was interfered with by its bright lights and the resultant glare on the wet pavement; that he could see nothing beyond the blind space that existed at the point of passing; that he did not observe the Skurdanis truck until he was within 10 or 15 feet from it and was then unable to stop before hitting it.

The question for decision is whether the facts adduced gave rise to a jury question as to the plaintiff's negligence. It is our opinion that they did. It was a dark night; it was raining hard; the plaintiff thought that the Sprout truck was moving toward him, and he did not discover that it was standing still until shortly before he was about to pass it. Had he observed that the Sprout truck was standing still, a different question would be presented. Until he reached a point about 100 feet ahead of the lights he had been able to see ahead a distance of about a hundred and fifty feet. When he got to within a hundred feet of the Sprout truck, his vision was interfered with and he could not see beyond the blind space which existed as a result of the bright lights. Believing that the truck was approaching him and that he had had a preview of that part of the highway where he was about to pass the truck, he had no reason for anticipating that his side of the highway was obstructed at that place. In our view, the question as to his negligence hinges upon whether it should be said as a matter of law, under the circumstances shown, that he failed to exercise ordinary care in not observing that the Sprout truck was standing still. Had he, in the exercise of ordinary care, observed that it was standing still, it would have been his duty to slow down to a speed less than 20 to 25 miles before proceeding into the blind space beyond which he could not see and which he would have had no opportunity to preview. When the situation on a highway is such that one's vision is completely obscured, it is one's duty to slow down or even stop until the cause of such obscured vision is at least in part removed. Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207;Leonard v. Bottomley, 210 Wis. 411, 245 N. W. 849;Pietsch v. McCarthy, 159 Wis. 251, 150 N. W. 482. Whether one's vision is completely obscured by blinding lights, dust, or dense smoke seems quite immaterial. Had it not been raining hard at the time of the accident, we should be inclined to hold that the plaintiff was negligent as a matter of law in not discovering that the Sprout truck was standing still. It is our opinion, however, under the circumstances shown, that it was for the jury to say whether the plaintiff was or was not negligent in respect to the lookout maintained by him. Delfosse v. New Franken Oil Co., 201 Wis. 401, 230 N. W. 31.

As to whether the plaintiff's speed was negligent under the circumstances, we are of the...