Milwaukee & Suburban Transport Corp. v. Royal Transit Co.

• Decision Date: 01 February 1966
• Citation: 139 N.W.2d 595,29 Wis.2d 620
• Court: Wisconsin Supreme Court
• Parties: MILWAUKEE & SUBURBAN TRANSPORT CORP., a domestic corporation, Appellant, v. ROYAL TRANSIT CO., Inc., a foreign corporation, Respondent.

Page 595

139 N.W.2d 595

29 Wis.2d 620

MILWAUKEE & SUBURBAN TRANSPORT CORP., a domestic corporation, Appellant, v. ROYAL TRANSIT CO., Inc., a foreign corporation, Respondent.

Supreme Court of Wisconsin.

Feb. 1, 1966.

This case arises out of an accident that occurred on September 29, 1959, when a tractor and semi-trailer operated by the Royal Transit Company, Inc., collided with the rear end of a Milwaukee & Suburban Transport Corporation bus that had stopped to pick up passengers. Damages in this action have been stipulated. Only the question of liability is before the court.

The jury found that both the driver of the truck and the driver of the bus were negligent in the manner and method of operation of their vehicles immediately prior to the collision, and that the negligence of deach was a cause of the accident. The jury apportioned 65 percent of the negligence to the ctuck driver and 35 percent to the driver of the bus. The bus company appeals, claiming that there was no credible evidence to support the finding of negligence against the bus driver, and that, if the driver were negligent, such negligence did not cause the collision.

Kivett & Kasdorf, Milwaukee, Nonald J. Lewis, Milwaukee, of counsel, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Kurt H. Frauen and F. Dean Lawson, Milwaukee, of counsel, for respondent.

HEFFERNAN, Justice.

Was there negligence properly ascribable to the bus driver?

There is some conflict in the evidence in regard to where the bus stopped in relation to the edge of the road. At the point where the accident occurred, the northbound lane of divided highway 41 was 22 feet 4 inches in width. The shoulder at the bus stop was 10 feet wide. The bus was 8 1/2 feet wide. It is undisputed that the bus could have been driven off the paved portion of the highway. The police officer witness placed the left rear wheel of the bus 11 feet 9 inches from the right edge of the road, which would mean that the bus was completely on the pavement at the time of impact. The driver testified that his left wheels were on the pavement and the right wheels were on the shoulder. One passenger said the bus was completely off the pavement, one said it was partly on the pavement and partly off. Two truck drivers testified that no part of the bus was on the shoulder. It is clear that, though the evidence is to some degree disputed, there was ample credible evidence for the jury to conclude that the bus was brought to a stop at least in part upon the travelled portion of the road. The question presented is, therefore, whether stopping in this position upon the road constituted negligence.

The disputed negligence of the bus mainly concerns that which might be attributable to its position on the highway when it came to a stop. In essence the trial judge, relying on the statute, ¹ instructed that, if this were a rural highway, the statute prohibited any person from stopping a vehicle upon the roadway if it were practical to stop off the roadway, and that, if this street were in a business or residential district, the vehicle must be parked, with the right wheels within 12 inches of the curb or edge of the travelled roadway. The trial judge correctly stated that sec. 346.51, Stats., is a safety statute and its violation constitutes negligence. The appellant's contention, however, is that there was not sufficient competent evidence before the jury to resolve initially the crucial factual determination of whether the area was outside of a 'business or residence district.' ¹

We conclude that the facts before the jury were sufficient to take its finding out of the realm of speculation and to support their obvious conclusion that the stopping occurred in a rural area. The bus driver testified that there were about four houses between the point of the accident and Layton Avenue, a distance of three blocks. Various witnesses referred to the area asd 'open country,' 'open country type highway,' and 'rural highway coming into city.' Photographs evidence the comparative rural nature of the surrounding countryside. There was evidence in the record that the road in question was U. S. highway 41, that it was a four-lane highway with shoulders approximately 10 feet wide. We conclude that the jury could, without resorting to speculation, and on the evidence before it, determine the nature of the district as required by sec. 346.51(1), 1959 Stats.

Nor can we agree with appellant's contention that the area, admittedly in the city of Milwaukee, could not be outside a business or residential district. The form of organization of the governmental unit in which the roadway is located is not material under the terms of this statute. It is clear that, bearing in mind the definitions of secs. 340.01(6) and 340.01(50), 1959 Stats., there may be non-business or non-residential districts within a city. We have previously held that the statutory duty to pull off of the travelled portion of a highway applied though the roadway was within the limits of a city. ²

We therefore conclude that on the basis of the facts before it, the jury might properly have found that the conduct of the bus driver in stopping upon the roadway was negligent.

Was the negligence of the bus driver in stopping his bus

upon the roadway a cause of the collision?

The appellant, bus company, argues that, though there be a finding of negligence upon its driver, such negligence was not causal.

The evidence shows that the driver of the truck had unobstructed vision ahead of him. He first saw the bus at a distance of 300 to yards. He later observed it at a distance of 200 feet and, at that time, he decided to pass the bus. He checked his rearview mirror for overtaking and following traffic. When he looked up, he saw the bus at a distance of 16 to 20 feet directly ahead of him. He swung to the left but struck the left rear of the bus with the right side of his tractor and the right front corner of the trailer.

The appellant supports its contention that the negligence of the bus driver is not causal by the decision of this court in Swinkels v. Wisconsin Michigan Power Co. (1936), 221 Wis. 280, 267 N.W. 1. In that case the plaintiff attempted to pass a bus that was travelling ahead of him and approximately a foot and one-half over the center line. When attempting to pass, the plaintiff lost control and crashed into a ditch. Our court said:

'The plaintiff knew that the bus was a foot and a half over the black line when he overtook it and when he attempted to pass it. Whatever negligence may be predicated upon the fact that the bus was being operated to the left of the black line was static, a condition rather than a cause. [Citing cases.] The position of the bus on the highway could cause no injury to the plaintiff in the absence of his entering into the dangerous zone alongside of it. It is our opinion that the position of the bus on the highway did not cause the plaintiff' injuries.' ³

The appellant also cites Collar v. Meyer (1947), 251 Wis. 292, 29 N.W.2d 31, in which, relying on Swinkels, this court held that, though an automobile was negligently parked upon the highway in violation of a safety statute, 'it did not cause this accident.' ⁴

The rationale of Swinkels was promptly criticized by legal scholars. In discussing Swinkels, Professor Richard Campbell stated:

'* * * the jury found causal connection in fact between the defendant's negligent act or acts and the injury to the plaintiff. Is it fair to say that no reasonable men could have reached these conclusions? It is difficult to justify the decisions on the basis of the court's control over the fact finding functions of the jury.' ⁵

Prosser points out the infirmities of the position taken in Swinkels.

'Many courts have sought to distinguish between the active 'cause' of the harm and the existing 'conditions' upon which that cause operated. If the defendant has created only a passive, static condition which made the damage possible, he is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. * * * Even the lapse of a considerable time during which the 'condition' remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who falls into it a month afterward. 'Cause' and 'condition' still find occasional mention in the decisions; but the distinction is now almost entirely discredited.' ⁶

The position this court has consistently taken on the question of causation is expressed in Lee v. National League Baseball Club: ⁷

'This court is committed to the 'substantial factor' test of determining proximate cause.' ⁸

In Pfeifer v. Standard Gateway Theater, Inc., ⁹ we urged jury instructions using the substantial factor test in determining legal cause. We there said:

"Substantial factor' is probably as simple and accurate a term in defining proximate or legal cause as has thus far been suggested. An instruction on proximate cause would be proper which informs the jury that by proximate cause, legal cause, or cause (whichever of such three terms as may have been used in framing the causation question in the special verdict) is meant such efficient cause of the accident as to lead the jurors, as reasonable men and women, to conclude that the negligence of A (A having been found negligent by the jury's answers to prior question in the verdict) was a substantial factor in causing the injury.' ¹⁰

Although recent cases have uniformly followed the 'substantial factor' rule, we have frequently distinguished fact situations to avoid the application of the 'static condition' concept of Swinkels. ¹¹

Because...