Vanderkarr v. Bergsma, 152
| Decision Date | 03 July 1969 |
| Docket Number | No. 152,152 |
| Citation | 168 N.W.2d 880,43 Wis.2d 556 |
| Parties | William E. VANDERKARR et al., Respondents, v. Anthony L. BERGSMA et al., Appellants. |
| Court | Wisconsin Supreme Court |
This case arises out of an accident that occurred on December 31, 1965, when an automobile operated by William E. Vanderkarr (hereinafter the 'plaintiff') collided with the rear end of a truck-trailer combination operated by Anthony L. Bergsma (hereinafter the 'defendant').
Plaintiff, operating a 1964 Chevrolet, was proceeding in a northerly direction on Wisconsin Highway 120, just north of the Wisconsin-Illinois state line. The highway was in very good winter driving condition. The accident occrred after dark. The headlights of the plaintiff's car were on, but the low beams were being used. The plaintiff's car was traveling at a speed between 40 and 50 miles per hour. There were four passengers in the plaintiff's car.
About one mile north of the Wisconsin-Illinois border, Highway 120 passes under a railroad trestle. As the plaintiff's automobile approached within approximately 200 to 400 feet of this trestle, plaintiff first noticed something 'dark and big' near the trestle which was obstructing his lane of travel. He took his foot off of the accelerator and either prepared to apply his brakes, if necessary, or he applied his brakes lightly. When the auto was within 50 to 100 feet of the trestle, plaintiff could clearly see that a truck-trailer combination was stopped beneath the railroad trestle and that it was completely blocking the northbound traffic lane. He hit the brakes so hard that his foot went through the floorboards of the car, but he was unable to stop his vehicle prior to the impact. At about the same instant as the impact, a car passed under the railroad trestle going south on Highway 120.
Plaintiff testified that he never saw any lights or reflection from the truck or trailer prior to the impact. One of the police officers who investigated the accident testified that the plaintiff's auto left skid marks of 58 feet prior to the point of impact.
Mrs. Vanderkarr, a passenger in the auto, testified that she was sitting in the middle of the back seat, that she had been watching the road, and that she did not see any lights or reflections from the truck-trailer combination prior to the impact.
Defendant was the driver of the truck-trailer which was stopped on the highway. The equipment he was driving consisted of a dump truck, attached to which was a four-wheel, tilt bed trailer. The trailer carried a backhoe. The backhoe is described as a crawler-type tractor unit with a boom which could be raised, lowered or swung sideways. The truck was stopped under the trestle because the boom of the backhoe had to be lowered before it would pass under the overpass. In order to clear the overpass, defendant, who had made the trip on a number of occasions before the night of the collision, would halt the dump truck before the boom reached the trestle, dismount, start the backhoe unit, swing the boom sideways, lower it, return to the truck, drive under the overpass, return to the backhoe, raise the boom and swing it into place, and then proceed on his way.
On the night in question, defendant stopped his truck under the trestle. The truck-trailer combination took up almost the entire paved portion of the northbound lane of the highway. No warning reflectors or flares were placed around the truck or trailer. Defendant did carry a flashlight in his hand. As defendant went to the trailer to mount the tractor, he noticed headlights coming from the south. As he swung into the seat of the tractor he estimated that the car was about 500 feet south of him, but the auto did not appear to be slowing down. Defendant commenced waving the lighted flashlight up and down when the automobile was about 125 to 250 feet away. At the time of the impact, defendant was standing on the trailer bed.
The trailer was eight feet wide and about 22 feet long. The dump truck was about eight feet wide. The truck had one red taillight and directional lights, but no clearance lights. The trailer had one red taillight which 'probably' had dirt and road dust on it. The trailer was also equipped with directional signals, but it was not possible to put both directional signals on at the same time.
Defendant testified that when he stopped his truck-trailer under the trestle, he turned on his right turn signal. He further testified that the right turn signals on both the truck and the trailer were flashing, and that the taillight on the truck and the taillight on the trailer were on prior to the impact. Following the impact, the undisputed testimony is that the right turn signal of the trailer was not working, 1 that the trailer taillight was operating but the red lens was broken, and that the truck lights were all on and operating.
All of the persons in the Vanderkarr automobile were injured by the impact. This suit was originally commenced when the four passengers in the Vanderkarr auto sued plaintiff, Country Mutual Insurance Company (plaintiff's insurer), defendant, and Northwestern National Casualty Insurance Company (defendant's insurer).
Defendant and Northwestern cross-complained against plaintiff and Country Mutual in case defendant was found to be negligent. Plaintiff and Country Mutual cross-complained against defendant and Northwestern for plaintiff's personal injuries and property damage and further for contribution in the event plaintiff was found to be negligent.
Prior to the trial of the action, the claims of three of the passengers in the Vanderkarr automobile were settled for $54,500. Northwestern and Country Mutual each paid one-half ($27,250) of the settlement but reserved the right to recover against each other in case the trial on the question of liability resulted in a determination of negligence other than 50--50. The claim of the fourth passenger in the Vanderkarr auto was also settled prior to trial, but on different terms.
When the case went to trial, it was submitted to the jury as William E. Vanderkarr and Country Mutual Insurance Company, Plaintiffs, vs. Anthony L. Bergsma and Northwestern National Casualty Insurance Company, Defendants. The personal injury damages and the property damage of plaintiff were stipulated. The only question that was tried was liability. Prior to submitting the case to the jury, the trial court found the defendant negligent in the manner in which he stopped on the highway (violation of sec. 346.51(1)(a) Stats.), in failing to equip the trailer with proper clearance lamps and reflectors (violation of sec. 347.16, Stats.), and in not placing warning devices to the rear of his standing vehicle (violation of sec. 347.29(1), Stats.). The trial court also found that the manner of stopping on the highway was a cause of the accident.
Insofar as plaintiff's possible negligence was concerned, the trial court instructed the jury on lookout, and management and control. He also gave the emergency instruction. Counsel for the defendant objected to the instruction on management and control and the instruction on the emergency doctrine. He specifically requested that the jury be instructed on speed, but the request was denied.
The jury found that the failure to equip the trailer with clearance lights was causal, that the failure to place warning devices to the rear of the standing vehicle was causal, and that the plaintiff was not negligent as to lookout or as to management and control. Accordingly, the jury assessed 100 percent of the causal negligence on the defendant (truck driver).
Defendants have appealed from the judgment.
Ray T. McCann and Richard A. McDermott, Milwaukee, for appellants.
Godfrey, Godfrey & Neshek, Elkhorn, for respondents.
Four issues are raised on this appeal:
(1) Did the trial court commit prejudicial error in failing to instruct the jury regarding speed;
(2) Did the trial court err in giving the emergency instruction;
(3) Was the failure to equip the trailer with clearance lamps and reflectors causal; and
(4) Should this court exercise its discretionary power to order a new trial in the interest of justice?
The defendant candidly admits on this appeal that his negligence in stopping the truck on the highway and in failing to set out warning devices was a cause of this accident. He contends, however, that it is a gross miscarriage of justice to find that the plaintiff was free from negligence. The defendant's burden on appeal is difficult when he seeks to upset the jury's apportionment of negligence.
'In Ernst v. Greenwald (1967), 35 Wis.2d 763, 773, 151 N.W.2d 706, we stated that this court would set aside a jury's finding apportioning negligence only if at least one of three factors were present: (1) If, as a matter of law, the plaintiff's negligence equaled or exceeded that of the defendant; (2) if the percentages attributed to the parties (in light of the facts) are grossly disproportionate; and (3) if there was such a complete failure of proof that the verdict could only be based upon speculation.' Lautenschlager v. Hamburg (1969), 41 Wis.2d 623, 627, 628, 165 N.W.2d 129, 131.
It would certainly be improper in this case to hold that the plaintiff's negligence equaled, or even approached, the total negligence of the defendant. However, it will be necessary to consider whether or not the allocation of all of the negligence to the defendant was grossly disproportionate under the facts of this case.
The trial court did not err in failing to instruct the jury regarding the plaintiff's speed. Admittedly, it is a long-standing rule in Wisconsin that
'* * * there is negligence on the part of the driver of an automobile when he proceeds at a speed at which he cannot stop his vehicle within the distance he can see ahead * * *.' Barker Barrel Co. v. Fisher (1960), 10 Wis.2d 197, 200, 102 N.W.2d 107, 109. See also, Bailey...
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