Northland Ins. Co. v. Avis Rent-A-Car

• Decision Date: 05 March 1974
• Docket Number: RENT-A-CAR,No. 303,303
• Citation: 62 Wis.2d 643,215 N.W.2d 439
• Parties: NORTHLAND INSURANCE COMPANY, a foreign corporation, Plaintiff-Respondent, v. AVIS, a foreign corporation, and Liberty Mutual Insurance Company, Defentants-Appellants.
• Court: Wisconsin Supreme Court

Page 439

215 N.W.2d 439

62 Wis.2d 643

NORTHLAND INSURANCE COMPANY, a foreign corporation Plaintiff-Respondent, v. AVIS RENT-A-CAR, a foreign corporation, and Liberty Mutual Insurance Company, Defentants-Appellants.

No. 303.

Supreme Court of Wisconsin.

March 5, 1974.

deVries, Vlasak & Schallert, Milwaukee, for appellants.

Charles Saggio and William F. Double, Milwaukee, for respondent.

HALLOWS, Chief Justice.

Avis and Liberty argue the trial court erred in applying sec. 347.29(5), Stats., which requires 2 red flags to be used when a truck is left standing in a lane of traffic. Avis and Liberty claim the accident occurred within the city of Oak Creek and therefore the section was not applicable. They also claim the court erred in not finding Balistreri negligent under sec. 346.14(1), Stats., which prohibits tailgating; and finally that the court was in error in applying the emergency doctrine when there was no issue of management and control involved.

The facts are not substantially in dispute. The accident happened on January 21, 1970, at approximately 3:00 o'clock in the afternoon on Interstate Highway 94 in Milwaukee county. The pavement was dry and level. At the place of the accident there are three 12-foot concrete lanes north bound plus a shoulder of three feet with an increase in height of about four and one-half inches and then a nine-foot parking lane for disabled vehicles. On this afternoon, John F. Michaelson was operating a 1968 International flatbed truck, which his employer Atlas Machinery Company had leased from Avis. The truck was 18 feet long from bumper to bumper and extended seven feet over the rear tries. Michaelson was proceeding north bound on I-94 in the far right outside lane and had just passed under the College Avenue overpass south of Milwaukee, when his engine went dead. He attempted to get off the traveled portion of the pavement and onto the emergency-stop lane. After a time Michaelson succeeded in mounting the curb and bringing his vehicle to a stop in the emergency lane, some 400 to 500 feet from the point where his motor went dead.

There is some dispute in the evidence concerning whether all four wheels of the truck had been brought over the curb and onto the emergency-stop lane, but all parties conceded that the left-rear corner of the flatbed truck did extend into the pathway of the northbound right outside traffic lane.

Michaelson left the truck and contacted his employer who called Avis. Then, Michaelson and his employer returned to the truck in the latter's car. There is some dispute where the car was parked. Michaelson claims his employer parked his car 12 feet behind the truck on the emergency lane. Other testimony puts the distance at 100 feet. Hte emergency flasher of the car was on. There is dispute whether the emergency flashers were on the truck at the time of the accident. There were no flags set up.

After the truck had been parked by the side of the road about 45 minutes, Balistreri approached the scene, proceeding north in the far right-hand lane of I-94, driving a box-type truck 20-feet long. The traffic flow was normal and he was driving 50 miles per hour at a distance of 55 to 60 feet behind a large semi, closed-body truck, proceeding in the same lane. The semi was 55 feet long, 13 feet high, and 8 feet wide, and Balistreri had been following this truck for five to six miles, maintaining a constant speed and trailing distance. All of a sudden, the preceding truck veered from the right-hand lane to the center lane. When this occurred, Balistreri became aware of the Avis truck parked in the emergency lane some 40 feet ahead, with its left-rear end protruding out into the right-hand lane. Prior to this time, Balistreri was completely unaware of the Avis truck because his view ahead was restricted by the semi he was following. Balistreri braked, checked his left rear-view mirror, turned his truck to the left, and moved as far as possible to the left side of the right-hand lane without entering the center lane. Balistreri could not drive into the center lane because there was a car trailing in that lane some 20 to 40 feet back and moving up. Balistreri was unsuccessful in avoiding a collision with the Avis truck. Damages were stipulated at $2,350.

In finding that Michaelson was 100 percent causally negligent in the manner in which he parked his truck on the highway, the court relied in part on the failure to place warning flags required by sec. 347.29(5), Stats. ¹ This statute, however, does not apply. The phrase, 'at any place mentioned in this section,' is defined in sec. 347.29(1) as 'the traveled portion of any highway or shoulder adjacent thereto outside the corporate limits of a city or village.' The counterclaim of Avis and Liberty alleged that when the accident happened on I-94 the vehicle was parked in the city of Oak Creek. This material allegation was not denied in the reply of Northland. Consequently, for the purpose of this action the court was required to take this material allegation uncontroverted in the pleadings as true. Sec. 263.26, Stats., mandates taht 'Every material allegation of the complaint, and of a counterclaim not controverted as prescribed, shall, for the purposes of the action, be taken as true.' See Herchelroth v. Mahar (1967), 36 Wis.2d 140, 153 N.W.2d 6. This is a prejudicial error because it was taken into consideration, as we read the record, in determining the apportionment of negligence.

The trial court was also in error in its consideration of the application of sec. 346.14, Stats. ² The court considered that Balistreri would be negligent if he had rear-ended the preceding truck, but even if he were negligent in following the preceding vehicle too closely, his negligence was not causal in respect to the accident involving the truck parked on the emergency lane. We agree with the statement in ...