Verbeten v. Huettl

• Decision Date: 18 January 1949
• Citation: 253 Wis. 510,34 N.W.2d 803
• Parties: VERBETEN et al. v. HUETTL et al.
• Court: Wisconsin Supreme Court

253 Wis. 510

34 N.W.2d 803

VERBETEN et al.

v.HUETTL et al.

Supreme Court of Wisconsin.

Nov. 16, 1948.

Rehearing Denied Jan. 18, 1949.

Appeal from a judgment of the Circuit Court for Outagamie County; M. G. Eberlein, Circuit Judge.

Reversed and remanded.Action was commenced by Marion Verbeten by Harold Verbeten, her guardian ad litem, and Harold Verbeten, in his own right, plaintiffs, on March 4, 1947 against Ivo Huettl, Francis Huettl, Joseph E. Huettl, Ervin Huettl, Bernard Huettl, and C. F. Huettl, co-partners, d/b/a J. F. Huettl & Sons and New Amsterdam Casualty Company, an Insurance Corporation, to recover damages for personal injuries. Plaintiff was a passenger on a school bus and the complaint charged that defendant negligently deposited his passengers in an unsafe place and that as a result Marion Verbeten was struck and injuried by another car. The action was tried to a court and jury and a special verdict returned.

Question No. 1 of the special verdict inquired whether the driver stopped his bus at the northeast corner of the intersection involved. This question was answered ‘yes' by the court.

Question No. 2 was whether defendant brought his bus to a stop south of the intersection. This was to be answered only if a negative answer was given to the first question and was not answered.

Question No. 3 was conditional upon an affirmative answer to the first question and was whether the driver of the bus was negligent in stopping his bus on the northeast corner of the intersection. This question was answered ‘yes' by the courts.

Question No. 4 was whether this negligence if found was a cause of the injury to Marion Verbeten. This was answered ‘no’ by the court.

The fifth question was in two parts: 5(a) inquired whether the driver was negligent in failing to give proper instructions to Marion Verbeten as to the care which she should exercise in crossing the road after leaving the bus. The jury answered this question ‘no’. 5(b) inquired whether the driver was negligent in failing to warn plaintiff that there was a car coming from the opposite direction from that in which the bus was traveling. The jury answeredthis question ‘yes' but in question No. 6 found that this negligence was not a cause of Marion Verbeten's injury. The jury found no contributory negligence on the part of Marion Verbeten and assessed the damages of Marion and Harold Verbeten.

Upon motions after verdict the court on January 3, 1948 entered judgment dismissing the action. Plaintiffs appeal.

For convenience Marion Verbeten will hereafter be referred to as ‘plaintiff’ since she was the active participant in the accident involved.

The material facts will be stated in the opinion.

Michael Burns, of Seymour (Benton, Bosser, Becker, Parnell & Fulton, of Appleton, of counsel), for appellants.

Bie, Welsh, Trowbridge & Wilmer, of Green Bay, for respondents.

WICKHEM, Justice.

Defendants Huettl were in the business of operating school buses in the vicinity of Seymour, Wisconsin. The bus involved was registered and equipped as a school bus. It made two separate runs, one for parochial and the other for public school children. There was no contract between the Huettls and the school district and transportation was arranged and paid for by the parents. Marion Verbeten was just short of thirteen years of age. She and her two sisters, together with Arlene Sachs and other children entered the bus at Seymour. The bus was driven by Joseph Huettl and immediately before the collision proceeded in a northerly direction on county truck C south of Seymour. It was then about 5:20 P. M. on November 26th and was dark. The bus approached the intersection of highway ‘C’ with highway EE. County trunk ‘C’ is a nine-foot concrete highway bordered by nine-foot gravel shoulders. Highway EE is a twenty-two foot gravel roadway. The bus had a single exit door in the front. It crossed highway EE and came to a stop on the northeast corner of the intersection. After it stopped its left wheels were on the nine-foot concrete highway. The front of the bus was so close to a ditch and culvert that plaintiff and the other children could not pass to the front of the bus but were compelled to pass to its rear. At the time the bus was stopped the driver observed a car coming from the north about 100 yards away. He made no mention of this car to the children but permitted them to alight. The Sachs girl left the bus first and proceeded towards her home which was on the same side of county trunk C as that on which the bus stopped. The three Verbeten children proceeded to the rear of the bus preparatory to crossing county trunk C from east to west in the direction of their home. Carol Verbeten crossed in safety; Marion Verbeten had proceeded between four and five feet on the concrete when she was struck by the car coming from the north. According to the evidence her younger sister was two or three feet to the west of the bus and Marion was a short distance ahead of her. In the meantime, after discharging the school children the bus proceeded north about fifty feet when the screaming of the brakes directed the driver's attention to the accident. Neither plaintiff nor the sister who was just behind her claimed to have seen the car before the collision. There was testimony that the children had had general instructions in school as to care and that these included directions to walk around the front of the bus when crossing to the opposite side of the highway. Plaintiff testified that she knew of this requirement but could not obey it because of the position of the bus.

At the outset it may be taken as established that the bus stopped on the northeast intersection of highway C with highway EE and in such a position that the Verbeten children could not pass to the front of it. Question No. 3 which inquired whether the driver of the bus was negligent in stopping his bus on the northeast corner of the intersection was answered ‘yes' by the court but the court found that this default was not a cause of the accident. It appears from the memorandum of the trial court that these questions were answered on the theory that the driver was negligent in stopping his bus in such a place as partly to block highway EE but that this negligence was not a cause of plaintiff's injury. We shall not consider the propriety of submitting the question. It is perfectly evident that the court was right in deciding that whatever negligence was involved in stopping the bus with a portion of its rear obstructing EE had nothing to do with this accident. The jury had a right to find in subsection A of question No. 5 that the driver was not negligent in failing to give instructions to plaintiff as to the care she should exercise in crossing the road after leaving the bus. The evidence is clear that Marion Verbeten had received full instructions fairly recently and there was no need to repeat these each time that she was discharged from the bus.

Question 5(b) inquiring whether the driver was negligent in failing to warn plaintiff that a car was coming from the north was answered ‘yes' by the jury but the cause question was answered ‘no’. The supportability of this item of the special verdict should, we think, be considered in connection with other and more general matters dealing with the issues in this case. Plaintiff offered in evidence, but the court refused to receive an administrative order applicable to the situation. Upon the rejection of this offer the subject matter was given no further consideration either by the judge or jury. The applicable rule is contained in general order M.V.D. 103 issued jointly by the Department of Public Instruction and the Motor Vehicle Department of Wisconsin and was in effect at the time of the accident. The preamble to the rules states that ‘in the interests of promoting safe transportation of school children on Wisconsin Highways the following regulations relating to the construction, equipment, maintenance and operation of motor vehicles used for the transportation of children in and to school are hereby prescribed * * *’ The order defines a school bus as follows: “School bus' as used herein is defined as any motor vehicle which is owned or operated by a public or governmental agency or privately owned or operated for compensation when such vehicle is used to transport school children to or from school * * *' Paragraph 41 of the order provides ‘after discharging passengers the driver shall make sure that the road is clear before allowing children to pass. Children obliged to cross the road should be required to walk around the front of the standing bus and the bus shall not proceed until children...