Swanson v. Maryland Cas. Co.

• Decision Date: 06 April 1954
• Citation: 63 N.W.2d 743,266 Wis. 357
• Parties: SWANSON, v. MARYLAND CAS. CO. et al.
• Court: Wisconsin Supreme Court

Page 743

63 N.W.2d 743

266 Wis. 357

SWANSON, v. MARYLAND CAS. CO. et al.

Supreme Court of Wisconsin.

April 6, 1954.

On June 18, 1950 at 12:30 a.m., a clear, dark night, defendant, Dewey Bayer, was driving his car in a southerly direction on highway 51 with his wife as a passenger. When he reached a point about five miles north of Woodruff, Wisconsin, he discovered that one of his tires was going flat. He looked for a place to stop, turned his car to the right partly onto the shoulder and traveled a quarter or half mile on the flat tire. When he stopped his car extended on to the black top about three feet thus leaving twenty-two feet of clear, black-top road to his left. His car was visible from a point at least a half mile to the south and five hundred feet to the north.

He left his lights burning and started to change the right front tire. While so engaged he and his wife observed a north-bound car operated by the impleaded defendant, Leon Emerson. The Emerson car passed his and continued to the north. Shortly thereafter, the truck of the plaintiff, Swanson, who approached the scene of the accident from the north at a speed of about fifty miles per hour, struck the Emerson car slightly. When the Swanson truck and the Emerson car met they were about one hundred fifty feet north of the Bayer parked car and partly on the east side of the road. After the contact between the Emerson car and the Swanson truck the truck was turned to its right or to the west, went across the highway into a ditch seventy-five feet north of the Bayer car, up an embankment approximately ten feet high, continued to travel south, and then rolled down on to its side on the west side of the highway barely touching the Bayer car.

Mrs. Swanson, who was riding in the truck with her husband, testified that when they were at least two hundred fifty feet north of the Bayer car she saw an object which appeared to her to be an automobile. Swanson testified that he did not see the Bayer car until his truck and the Emerson car met seventy-five or eighty feet north of the Bayer car.

The accident occurred on a level stretch of road, a flat area from five hundred to six hundred feet long. The Bayer car was parked from three hundred fifty feet to four hundred fifty feet south of the north extremity of the flat area.

This action was brought by Willis Swanson against Dewey Bayer and his insurance carrier and the insurance carrier of Leon Emerson to recover for the injuries sustained by him as a result of the accident. Leon Emerson was later impleaded as a defendant. Pending this appeal Willis Swanson died and the action was revived in the name of his wife as special administratrix of his estate.

The issues were submitted upon a special verdict by which the jury found that Bayer was causally negligent in respect to leaving his vehicle standing upon the highway and exonerated him of negligence in respect to displaying a red tail-light in the rear of his automobile. Emerson was exonerated entirely. Swanson was found causally negligent in respect to lookout, management and control and in the operation of his truck to the left of the center of the highway; he was exonerated of negligence as to speed. The jury attributed 15% of the causal negligence to Bayer and 85% to Swanson.

Upon such verdict judgment was entered on April 17, 1953 dismissing the complaint of the plaintiff against each of the defendants. Plaintiff appeals.

Genrich & Terwilliger, Wausau, Emil A. Wakeen, Walter H. Piehler, Neil M. Conway, Wausau, of counsel, for appellant.

Smith, Okoneski, Puchner & Tinkham, Wausau, for defendants-respondents.

Krueger & Fulmer, Wausau, for Farmers Mut. Ins. Co. and Leon Emerson.

GEHL, Justice.

The testimony which we have recited represents the version of defendants and is in many respects contradicted. The rule requires, however, that we consider the evidence most favorably to defendants and to the jury's findings. Koniecko v. Huffman, 265 Wis. 79, 60 N.W.2d 729, 61 N.W.2d 880. For that reason we do not consider it necessary to recite the testimony which supports the claim of plaintiff, particularly since there is nothing in the record to indicate that the story as it was told by the defendants and their witnesses is incredibile.

The trial court, instead of directing his specific instructions to the various questions of negligence, opened his charge with the statement:

'I can now instruct you on the first, third and fifth questions together'.

The first, third and fifth questions of the verdict inquire as to the alleged negligence of the respective parties.

Secs. 85.40(2)(a) and (b), Stats., each of which limits the rate of speed at which an automobile may be driven, were then read by the court to the jury. The further instruction was given immediately following:

'This section of the statutes,--that is, 85.40(2)(b), requires every vehicle to be operated at an appropriate reduced speed when approaching and going around a curve, when approaching a hill crest, and generally to be controlled in such a manner as to avoid collision.

Plaintiff contends that the portion of the charge which we have italicized was erroneous and prejudicial. The instruction is erroneous. It is not the duty of a driver to have his car under such control and to drive it at such rate of speed as to avoid accident, but to use ordinary care to that end. Quinn v. Hartmann, 210 Wis. 551 246 N.W. 587; Schulz v. General Casualty Co., 233 Wis. 118, 288 N.W. 803; Lembke v. Farmers Mut. Automobile Ins. Co., 243 Wis. 531, 11 N.W.2d 169, 12 N.W.2d 18. Although erroneous, the instruction is not prejudicial to plaintiff. He was found by the jury not to have been negligent with respect to speed.

Plaintiff's contention that the following instruction, which also deals with the question of speed, is erroneous, must be rejected:

'Independent of statute, when the view of the driver is (sic) an automobile is obstructed, whether by reason of a grade or otherwise, the speed of the car should be so reduced that the car can be stopped within the distance the driver can see ahead.'

Plaintiff attacks this portion of the charge upon the ground that the trial court should have added thereto some reference to the duty of a driver when he approaches an object rendered obscure by reason of atmospheric and other conditions; he contends that some reference should have been contained therein to the existence of 'the phenomenon of camouflage'. He may not complain of that for the reason that he asked for no instruction with respect thereto.

The court, after instructing the jury that the statute provides that under certain circumstances one should not stop, park or leave standing any vehicle upon a highway, read sec. 85.19(8) which provides as follows:

'Disabled vehicles upon highway. The provisions of this section shall not apply to the operator of any vehicle which is disabled while on the highway in such a manner or to such extent that it is impossible to avoid stopping or temporarily leaving such vehicle in such position'.

Plaintiff contends that section 85.19(8) Stats. is not applicable, that the evidence shows conclusively that it was not impossible for Bayer to avoid temporarily leaving his car in the position in which he left it before the accident. Bayer was found negligent in respect to parking. If the instruction was erroneous plaintiff was not prejudiced thereby.

Plaintiff contends also that the instructions referred to and others 'indicated to the jury the position of the court relative to the respective negligence of the parties'. The weakness of plaintiff's contention is demonstrated by his reference to the fact that the court instructed the jury on question 5 which inquires as to his conduct before instructing with respect to questions (1) and (3) which inquire as to the conduct of Bayer and Emerson respectively. We know of no rule which requires that the various portions of a charge be given in any prescribed order. We have examined the entire charge and find nothing in it which suggests that it might have influenced the jury toward a finding or findings for or against either of the parties.

It is contended that the findings of negligence on the part of plaintiff as to lookout, control and operation of his truck on the left side of the road are a duplication rendering the comparison of negligence inaccurate. No objection was made by plaintiff to the inclusion in the verdict of the questions which inquire as to his conduct. If the verdict and the findings are open to the objection which plaintiff now urges it was waived by his failure to interpose it before the issues were submitted to the jury. Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 231 N.W. 257, 235 N.W. 413; see also Nimits v. Motor Transport Co., 253 Wis. 362, 34 N.W.2d 116, 118, where the court said:

'Counsel for the parties have a distinct obligation to aid in the preparation of special verdicts and to voice objection to the form of questions, if such questions are objectionable, when it will afford an opportunity to the trial court to correct them. Counsel may not accept the language of the trial court as used in the special verdict without objection, wait and see whether the answers of the jury are satisfactory and, if not then...