Olson v. Milwaukee Auto. Ins. Co.

• Decision Date: 02 February 1954
• Citation: 266 Wis. 106,62 N.W.2d 549
• Parties: OLSON, v. MILWAUKEE AUTO. INS. CO. (two cases). SCHALLER, v. MILWAUKEE AUTO. INS. CO. et al.
• Court: Wisconsin Supreme Court

Page 549

62 N.W.2d 549

266 Wis. 106

OLSON, v. MILWAUKEE AUTO. INS. CO. (two cases).

SCHALLER, v. MILWAUKEE AUTO. INS. CO. et al.

Supreme Court of Wisconsin.

Feb. 2, 1954.

Mandate Modified on Denial of Rehearing April 6, 1954.

See 63 N.W.2d 740.

This appeal involves three actions which were consolidated for trial. Two were brought by the administrator of the estate of Russell Olson, deceased, the other by Eugene Schaller. Olson and Schaller were guests of Blaine Welch in a Ford automobile which collided with a trailer-tractor operated by Robert M. Voshell on December 11, 1949 at about 12:30 A.M. Defendants named in each of the cases are Welch and his insurance carrier and Voshell and his employers. For convenience we shall refer to Welch as including his insurance carrier, and to Voshell as including his employers. Each of the defendants cross-complained for contribution. Welch also cross-complained against Voshell for the recovery of the damages sustained by him as a result of the collision.

By its answers to the questions of a special verdict the jury found Welch guilty of causal negligence with respect to speed, lookout and control; that Welch by negligent conduct increased the danger assumed by Olson and Schaller upon entering his automobile with respect to speed, lookout and control and that such negligence was in each respect a cause of the collision and injuries; that Voshell was causally negligent with respect to control; that Voshell was not negligent with respect to speed or lookout; that neither of the plaintiffs was negligent in respect to his own safety and protection; that 75% of the causal negligence is attributable to Welch and 25% thereof to Voshell.

Judgments upon the verdict in favor of each of the plaintiffs was entered on May 22, 1953. From these judgments Welch and Voshell appeal. The facts will be stated in the opinion.

Hale, Skemp, Nietsch, Hanson & Schnurrer, La Crosse, for Welch and Ins. Co.

Lees & Bunge, La Crosse, Lawrence M. Engelhard, La Crosse, of counsel, for Trucking Co. and Voshell.

Donovan, Gleiss, Goodman, Breitenfeld & Gleiss, Sparta, for respondent.

GEHL, Justice.

It is the well recognized rule that when a jury's findings are attacked, particularly when they have had the trial court's approval, our inquiry is limited to the issue whether there is any credible evidence that, under any reasonable view, supports such findings. With the rule in mind we consider that it is necessary to recite only the testimony which supports the jury's findings. Some of it is in dispute, but as to the disputed testimony we must recognize that it was for the jury to determine where the truth lies.

Voshell attacks the refusal of the trial court to change the jury's answers which found him causally negligent with respect to control.

The testimony given by Voshell is all that there is in the record with respect to his conduct. He was driving a heavy trailer in an easterly direction upon highway 16. As he entered a curve bearing to the southeast he could see ahead a distance of about a city block. After he entered the curve and driving at the rate of about 30 miles per hour he struck some ice, the unit turned to the north lane; he made an effort to return it to the south lane but failed. Then the unit entered the north ditch and shoulder. He thought that he could gain traction upon the snow in the ditch and on the shoulder so as to permit him to turn his front wheels back on to the pavement. He did not apply his brakes because, as he testified, the ditch appeared to be shallow and he felt that if he applied his brakes the unit would settle into the ditch and he would have to be towed out. He could see some distance ahead and saw no obstacles. After he came out of the snow covered area in the ditch he felt a jolt on his steering wheel. The jolt threw the steering wheel out of his hands. His head struck some part of the cab and he was rendered unconscious. He does not recall what happened after the steering wheel was jolted out of his hands.

Upon examination made after the accident he found that the had struck a culvert under a private driveway leading from the highway into the farm yard of one Martin Wood. When he struck the culvert he was driving at the rate of about 20 miles per hour.

The unit was thrown to the pavement, a part of it landing on the north half of the pavement and extending a slight distance to the south of the center line of the road. It was lying there when the Welch car struck it.

We agree with counsel for Voshell that the mere fact that his trailer skidded into the north ditch does not establish that he was negligent. Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A.L.R. 665. The real question is whether his conduct after his unit entered the ditch was negligent. Counsel insists that we must find as a matter of law that the undisputed testimony establishes that he was not guilty of causal negligence. We do not agree.

'Where the facts are wholly undisputed and admit of no conflicting inferences, the question is one of law for the court.' 53 Am.Jur. 143.

The trial court properly submitted the question as to Voshell's control of the unit for such inference or inferences as the jury might make. The jury is not restricted to a consideration of the facts proved even though they be undisputed. They may give effect to such inferences as reasonably may be drawn from them. DeKeuster v. Green Bay & W. R. Co., 264 Wis. 476, 59 N.W.2d 452.

The trial court in its instructions to the jury treated the question submitted as to Voshell's negligence as follows:

'In this case the fact is undisputed that the tractor and trailer unit of the defendants Gerden Brothers was upset so it blocked the traveled portion of the highway at the time that this accident occurred. You are instructed that where a vehicle is in a position on a highway where it has no legal right to be it is presumed that such position on the highway is due to some act of negligence on the part of those who are responsible for its operation, and it becomes the duty of those who operate said vehicle to prove otherwise, and to satisfy you the jury that the illegal position on the highway is not due to any fault of those who are responsible for its operation.'

The instruction was given at the request of Blaine Welch and Milwaukee Automobile Insurance Company. It was erroneous and prejudicial. First, it assumes that the unit 'blocked the traveled portion of the highway' whereas there is testimony that it covered but a very slight part of the concrete south of the center line. Second, it states the law to be that when a vehicle is in a position on a highway where it has no legal right to be it is presumed that such position on the highway is due to some act of negligence on the part of the operator. Hamilton v. Reinemann, 233 Wis. 572, 290 N.W. 194; Kempfer v. Bois, 255 Wis. 312, 38 N.W.2d 483, are not applicable. The rule there stated does not apply where one of the vehicles on the highway creates a static condition as is the case here. The cases holding that the presence of a vehicle on the wrong side of the road establishes a prima facie case of negligence on the part of the operator had to do with moving vehicles. An entirely different situation exists where the encroaching vehicle is at rest, particularly where its presence is observable to an approaching driver and there is evidence that the vehicle at rest lies in such position as to enable other users of the highway to proceed on an unobstructed portion of the highway without danger of collision. By the instruction the burden of proof was in effect shifted to Voshell and the other parties to the action were relieved of the duty to prove every element essential to a finding against him. The error is such as to require a new trial.

Counsel for Voshell contend that if it be found that he was negligent with respect to control such negligence was not a legal cause of the collision. They argue that the negligent acts of Welch were an intervening or superseding cause which insulted any negligence of Voshell as a cause of the collision. The same contention was made in Dombrowski v. Albrent Freight & Storage Corp., 264 Wis. 440, 59 N.W.2d 465, with respect to a factual situation similar to that which exists here. We rejected a similar claim. What we said there is applicable here. The act of Welch was a normal response to the situation created by the conduct of Voshell in bringing his unit into a position upon the highway; the acts of Welch were not extraordinarily negligent so as to constitute an intervening or superseding cause which prevented the negligence of Voshell from constituting a legal cause of the accident.

At the time the Voshell unit fell upon the highway Blaine Welch was proceeding toward it in his automobile from the east. He had as his guests in the automobile Russell Olson and Eugene Schaller. Their testimony is in most essential respects quite similar. It had snowed a little before the accident but not sufficiently to have caused any serious trouble. Visibility was not affected and they could observe a distance ahead at least 300 feet. When Welch approached the curve just west of the scene of the collision the car was travelling at the rate of from 25 to 30 miles per hour.

Olson testified that when they reached a point from 300 to 500 feet east of the Voshell unit he observed it and at that time Welch...