U.S. Fid. & Guar. Co. v. Verbergt

• Decision Date: 08 January 1929
• Citation: 197 Wis. 542,222 N.W. 799
• Court: Wisconsin Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. VERBERGT ET AL.

197 Wis. 542

222 N.W. 799

UNITED STATES FIDELITY & GUARANTY CO.

v.VERBERGT ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1929.

Appeal from a judgment of the Circuit Court of Milwaukee County; Chester A. Fowler, Judge.

Action by the United States Fidelity & Guaranty Company against Mabel Verbergt and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.--[By Editorial Staff.]

Action begun September 22, 1926, judgment entered May 19, 1928. Personal injuries. Automobile accident. State trunk highway 41 runs east and west from Milwaukee through West Allis to Waukesha. It is paved with concrete 18 feet wide and has gravel shoulders about 3 feet wide on each side. Entering this highway from the north is a graveled road known as the Curtis road, wide enough to permit the passage of two automobiles. East from the Curtis road a distance variously estimated from 300 to 500 feet there was a private driveway leading to the north known as the Tesch drive. For a considerable distance east and west of the Curtis road highway 41 was level, passing through low land, the grade of the highway having been raised above the natural surface by a fill. In the center of the concrete was a black mark. About 9 o'clock in the forenoon of February 7, 1925, Peter Verbergt drove a 4 1/2-ton capacity truck, 7 feet wide and 21 feet long, loaded with gravel, southerly on the Curtis road, intending to go east toward West Allis. As the truck had about reached the center of the concrete he was struck a glancing blow by a bus coming from the west, going toward Milwaukee. He then pulled his truck to his left or the north side of the concrete. The bus which struck him stopped on the south side of the road some 75 or 80 feet east of Verbergt's truck. Verbergt and the driver of the bus which struck him exchanged names and license numbers. When Verbergt started to walk back to his truck and before he reached the truck, another bus going west ran past him and struck his right front wheel a glancing blow. This bus was driven by one Monahan. Monahan pulled into the Curtis road; Verbergt asked him to wait a minute until Verbergt could pull his truck to the right side of the road, being the southerly side. Verbergt then drove 50 to 75 feet east and left the truck standing on his right or south side of the road with the two front wheels on the pavement and the southerly or right rear wheel about 3 inches off the pavement. Verbergt then walked to where Monahan was on the Curtis road, exchanged names and numbers of licenses with Monahan, and started to walk east toward his truck. As he did so he heard another automobile approaching from the west. Both he and Monahan yelled and waved at this automobile, but it went past without stopping and collided with the left rear corner of the truck body. This last bus was known as the Leskowitz or Walter's Coach Line bus. It was a Hudson sedan and was driven by Carl Grabensky. The entire top of the Leskowitz bus was demolished, two of the passengers were killed, and four injured. The Leskowitz bus line was a bonded carrier, under the provisions of chapter 194, Wis. Stats., and as such required to carry insurance. The plaintiff in this action was the insurance carrier on said line. Suit was brought against Leskowitz to recover damages. By stipulation between the plaintiff and Leskowitz on the one side and the defendants in this action on the other, it was agreed that Leskowitz as defendant in the actions brought against him should offer judgment in the sum of $7,500 without prejudice to the rights of plaintiff herein for contribution if any such right he had as against the defendants in this action. Judgment was entered upon the offer for $7,500, which together with costs and disbursements, counsel fees, brought the amount paid in discharge of the liability up to the sum of $8,618.55. The plaintiff, being subrogated to the rights of Leskowitz, brought this action to recover the whole amount paid in discharge of its liability. At the close of the trial the court submitted to the jury one question relating to the negligence of the defendant Peter Verbergt in the operation of his truck, as follows: “Ought the driver of the truck as a man of ordinary intelligence and prudence reasonably to have foreseen from the circumstances that some injury to another might naturally result from leaving the truck where it was standing when struck by the bus?” The jury answered this question “Yes.” Upon motion of the plaintiff, judgment was then entered in favor of the plaintiff against the defendants for the sum of $3,759.85, with interest from the 21st day of July, 1926, from which judgment the defendants appeal.Hoyt, Bender, McIntyre & Hoyt, of Milwaukee, for appellants.

Bloodgood, Kemper & Bloodgood, of Milwaukee (Eric Wm. Passmore, of Milwaukee, of counsel), for respondent.

ROSENBERRY. J.

On behalf of the defendant it is argued, first, that the driver of the truck, Peter Verbergt, was as a matter of law free from negligence; second, that the trial court erred in refusing to submit to the jury, as requested by the defendant, a question as to whether or not Peter Verbergt failed to exercise ordinary care. In his decision on motions made after the verdict the learned trial court properly held that the parking statute did not apply. With reference to the failure to submit a question as to whether or not the defendant Peter Verbergt used ordinary care, the court said:

“A request was made for submission of this question. I refused to submit it because I was of opinion, as I still am, that the question submitted covers...