Nelson v. Travelers Ins. Co.
| Decision Date | 01 November 1977 |
| Docket Number | No. 75-375,75-375 |
| Citation | 259 N.W.2d 48,80 Wis.2d 272 |
| Parties | Bonnie J. NELSON and David Nelson, Plaintiffs-Respondents, v. The TRAVELERS INSURANCE COMPANY, a Foreign Insurance Corporation, Nicholas Behling, d/b/a Behling's Sewage Disposal and Lawrence Borchardt, Defendants- Appellants. |
| Court | Wisconsin Supreme Court |
Syllabus by the Court
This action arises out of an automobile accident. Judgment was rendered on the verdict on behalf of the plaintiffs. The defendants appeal. The appeal is limited to the liability features, damages are not at issue. 1
Robert D. Sullivan, Brian J. Henderson and Ames, Riordan, Crivello & Sullivan, Milwaukee, for defendants-appellants.
Philip Padden and Zubrensky, Padden, Graf & Bratt, Milwaukee, for plaintiffs-respondents; Alan M. Clack and Thompson & Coates, Ltd., Racine, of counsel.
The accident in question occurred on West Brown Deer Road, in the Village of River Hills, Milwaukee County, at approximately 1 p. m., on December 23, 1969. West Brown Deer Road has three lanes: an eastbound and westbound lane, and a center lane. It had snowed heavily during the morning and possibly up to the noon hour. The east and west lanes had been plowed, but four to six inches of snow remained in the center lane.
A truck owned by Behling's Sewage Disposal was discharging sewage into a manhole located partially on the eastbound lane pursuant to a permit issued by the Metropolitan Sewerage Commission of the County of Milwaukee. The manhole was located at the south edge of the roadway, approximately 367 feet east of a bridge where West Brown Deer Road crosses the Milwaukee River. It was 36 inches in diameter; 30 inches of the manhole was in the traveled portion of the lane and six inches in the shoulder. The driver of the truck was Lawrence Borchardt. He parked the truck so that a spout in the center of the rear was directly over the manhole. In this position the left side of the truck extended approximately three and one-half feet into the eastbound lane. Borchardt testified that five rear lights, including flashing lights on top of and at the rear of the truck were in operation at this time. A traffic officer testified these five lights were on when he arrived ten minutes after the accident.
The procedure in dumping the sewage involved attaching a 20-foot canvas hose to the spout which was then lowered into the manhole. Borchardt testified it was impossible to discharge sewage without locating the spout directly over the manhole because the hose would kink and sewage would spill out onto the highway.
The truck was seven and one-half feet wide and 17 to 20 feet long. The shoulder of the road was 11 feet wide and at its outer extreme, directly in line with the manhole, were a post carrying a traffic sign and a sewer vent. Borchardt stated that because of these physical impediments it was impossible to park the truck at a right angle to the roadway. He claimed that the truck acted as a barricade, and even if it would have been possible to discharge while parked on the shoulder the road would have to have been obstructed in some way to warn of the open manhole.
Borchardt further testified the plowed eastbound lane was 10 feet wide and that while parked at the manhole several eastbound cars passed him without going into the center lane as well as a large tank truck which passed shortly after the accident.
The car driven by Bonnie J. Nelson approached from the west. The bridge located west of the manhole is slightly arched, the crest being about five feet higher than the western edge of the bridge. Nelson testified that because of the weather conditions she could not see over the crest as she approached from the west. She testified that it was snowing and that snow was being blown across the road in almost blizzard conditions. A police officer who arrived at the scene ten minutes later testified that there was a light snow falling but considerable blowing snow. Borchardt disagreed with the characterization "blizzard conditions," but did agree that there was blowing snow.
As West Brown Deer Road approaches the bridge from the west, it comes out of an "S" curve and the speed limit increases from 25 to 50 miles per hour. Nelson stated that her speed was from 20 to 25 miles per hour as she proceeded through the "S" curve and crossed the bridge.
At the crest of the bridge she saw the Behling Sewage Disposal truck in the distance. She could not tell whether it was moving or stopped, and testified that she saw no flashing lights. The truck was visible to her for only a split second before the snow obstructed her vision. She did not slow down but continued down the highway. Suddenly the truck "loomed up" at her out of the snow. In order to avoid striking it she turned to the left into the snow covered outer lane, applied her brakes, and lost control of her vehicle. It skidded into the westbound lane where she struck a car driven by Alice S. Wilson. There was no snow in the plowed eastbound lane but it was wet.
Bonnie J. Nelson suffered severe injuries and brought suit against Nicholas Behling d/b/a Behling's Sewage Disposal, its insurer, the Travelers Indemnity Company, and Lawrence Borchardt for property damage, pain and suffering, permanent disablement and wage loss. Her husband, David, was also a party, seeking medical expenses and damages for loss of services, society and companionship.
The jury returned a special verdict which found Lawrence Borchardt 75 percent negligent as opposed to 25 percent negligence on the part of Bonnie J. Nelson. Prior to submission to the jury the court found Borchardt negligent as a matter of law "with respect to the placement" of the truck, and the jury found that this was causal. The jury did not, however, find Borchardt negligent for failure to warn other motorists of the presence of the truck. Bonnie J. Nelson was found negligent with respect to speed, lookout, and management and control, but only causally negligent with respect to management and control. Bonnie J. Nelson was awarded $17,639.22 and her husband received $3,297.70.
The judgment was entered on the verdict on August 8, 1975.
The defendants-appellants contend it was error (1) to deny their motion for a nonsuit, (2) to deny their motion for a directed verdict, (3) to find Borchardt negligent as a matter of law "with respect to the placement" of the truck, (4) to fail to find the plaintiff Bonnie J. Nelson negligent as a matter of law and for refusal to change the cause answer as to speed and lookout from "No" to "Yes," and (5) to omit a part of the pattern instruction as to speed.
Two of the errors assigned are that the trial court erred in refusing to grant the motions for a nonsuit and directed verdict. The rule which applies to both of these issues is that if there is any credible evidence or favorable reasonable inferences therefrom that will support the claims of the plaintiffs the motion should be denied and the ultimate facts be determined by the jury. 2 We do not propose to repeat or discuss the evidence in answer to these issues. Suffice it to say, we have examined all of the evidence and there is sufficient credible evidence in support of the plaintiffs' claims as to negligence and causation and, further, that upon these facts it cannot be held as a matter of law that the plaintiff Bonnie J. Nelson was more causally negligent than the truck driver Borchardt. The trial court did not err in denying these motions.
The "rule of the road," in so far as it applies here, is contained in sec. 346.51, Stats., and is as follows:
The appellants contend that under the facts of this case the question of whether it was practical to park off the roadway was a question of fact for the jury and that it was error for the trial court to answer the question as a matter of law. We agree.
The trial court concluded that parking the truck partially on the highway so as to be directly over the manhole was a mere matter of convenience and not practicality. He opined the cases dealing with practicality dealt with either disabled vehicles or with nonexistent or inadequate shoulders which made it impossible to remove the vehicle from the traveled surface.
The appellants cite Gast v. Dallmann, 240 Wis. 103, 2 N.W.2d 716 (1942), for the proposition that economic convenience may be a basis for determining practicality. There the court dealt with the precursor to the present sec. 346.51, Stats., and stated:
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