Walker v. Kroger Grocery & Baking Co.

• Decision Date: 06 February 1934
• Citation: 252 N.W. 721,214 Wis. 519
• Court: Wisconsin Supreme Court
• Parties: WALKER ET AL. v. KROGER GROCERY & BAKING CO. ET AL.

214 Wis. 519

252 N.W. 721

WALKER ET AL.

v.KROGER GROCERY & BAKING CO. ET AL.^a1

Supreme Court of Wisconsin.

Feb. 6, 1934.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Hugh Walker and others against the Kroger Grocery & Baking Company and others, in which defendants filed a cross-complaint against plaintiffs Walker and another for contribution. From a judgment for plaintiffs against defendants, the latter appeal, and, from a judgment awarding defendants contribution, plaintiff Walker appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action to recover damages for personal injuries sustained by plaintiffs by reason of alleged negligence of the defendants, Kroger Grocery & Baking Company and Alfred Hegley, in relation to a motortruck, which was run into by an automobile, which was operated by the plaintiff Walker, and in which the plaintiffs Iselin and Bashaw were riding as his guests. The defendants denied liability, and also filed a cross-complaint for contribution from Walker and his insurance carrier. Plaintiffs recovered judgment against defendants, who in turn recovered judgment for contribution from Walker. Defendants appealed from the judgment against them, and Walker appealed from that part of the judgment which awarded defendants contribution.Sanders & McCormick and Martin R. Paulsen, all of Milwaukee, for appellant Walker.

Olin & Butler and Clifford G. Mathys, all of Madison, for defendants-appellants.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondents.

FRITZ, Justice.

The plaintiffs Walker, Iselin, and Bashaw were injured at about 6 p. m. on a dark, foggy night in December, 1931, when an eastbound automobile operated by Walker, and in which Iselin, Bashaw, and Joseph Trossen were riding as guests, ran squarely into the rear end of a truck. That truck, while used by the defendant Hegley in hauling a seventy-eight hundred pound load for his employer, the defendant Kroger Grocery & Baking Company, had become disabled at about 3 o'clock p. m. while he was traveling eastward, on the south half of a twenty-foot wide concrete roadway near Cambridge, Wis. He had halted the truck upon hearing a rumbling noise at the right rear wheels, and, upon inspection, he found that three out of six studs, by which the wheels were fastened, were broken, and that the other three were stripped but still in place. Without attempting to move the truck from the concrete roadway, he ran it back and forth until he had the rear thereof properly placed over a jack which he had set on the concrete, and there he left it on the south half of the roadway until it was repaired after the plaintiffs had collided with it. Meanwhile he had raised the truck on the jack, and thereupon the outer of the two right rear wheels had fallen off. He then walked to Cambridge and telephoned for help to E. F. Showen, a mechanic employed by the Kroger Grocery & Baking Company at Madison. Showen reached the truck at 4:30 p. m. Instead of attempting to repair the studs at a shop in Cambridge, he drove back to Madison to repair them, and he did not return to the truck until after the collision occurred. The truck had a tail-light underneath and about three and one-half feet from the rear and eighteen inches from the left side of its platform. That light was lit at the time of the collision, but the evidence is conflicting as to the extent to which it was visible. There was no clearance signal light or reflective signal on the rear of the truck, as required by section 85.06 (3), Stats., on motor vehicles having a width in excess of eighty inches, although the body of the truck was ninety-five inches wide.

Plaintiffs, with Walker driving, had been traveling at the rate of thirty-five to forty miles per hour since they left Madison. Walker and Iselin, who sat on the front seat with him and was helping keep a lookout, realized that because of the fog the headlights on Walker's car did not enable them to see beyond fifty feet ahead of that car, and that it was dangerous to drive. They did not see the truck or its tail-light until they were within forty or fifty feet of it. Then, although Walker applied his brakes immediately and reduced his speed to five or ten miles per hour, he was so near to the truck that he could not stop, in view of the speed at which he had been approaching, before running into the truck. On the other hand, he could not turn to his left, to pass to the north of the truck, because he saw that an on-coming car was about to pass the truck on that side.

The court directed the jury to find that the defendants were negligent in not having a clearance signal; and the jury found that they were also negligent in failing to give an adequate warning; as to the stopping position of the truck on the highway; and as to removing the truck therefrom. The jury also found that defendants' negligence in each of those respects, including the failure to have a clearance signal, was a cause of the accident.

[1] Defendants contend that the absence of such a reflective signal as would have satisfied the requirements of section 85.06 (3), Stats., was not a proximate cause of the accident under the existing circumstances, and that that statute was not applicable because it was intended only for the benefit of those who, while overtaking and attempting to pass a vehicle, collided with it because, due to the absence of a clearance signal on the overtaken vehicle, they were unaware of its extraordinary width. As the evidence necessitates the conclusion that the absence of a reflective signal was not a proximate cause, under the circumstances in this case, there is no need at this time to consider that second contention. The evidence established, without conflict, that because of the fog the rays of the headlights on Walker's car did not penetrate beyond fifty feet ahead of the car. Consequently, even if there had been a reflective signal on the rear of the truck, it would not have been visible or disclosed the presence of the truck until it was within that fifty-foot range of Walker's headlights. That distance, at the speed at which Walker was approaching, was too short to enable him to stop. By the time a reflective signal would have become illuminated and observable from Walker's car by virtue of the rays of his headlights, the collision would have been unavoidable. It would not have been rendered avoidable by the mere presence of an unilluminated reflective signal, but very likely would have occurred just the same because of the speed at which Walker was approaching and the proximity of the vehicles before any reflective signal would have been observable from Walker's car under the circumstances.

[2][3] Defendants contend that there was no evidence to support the jury's finding that they were negligent because of their failure to give adequate warning that the truck was on the roadway. There was no warning in that respect excepting such as was afforded by the tail-light, and the evidence as to the adequacy of that light, at the time of the collision, is conflicting. It was lit and, when clean, as it was observed to be after the collision, it was visible from an automobile while approaching from eight hundred feet to within fifty feet. However, slush and dirt had splashed on the tail-light while en route from Madison over wet concrete, and Lester Jarlsberg, who examined the light immediately after the collision, testified that, while there was a red reflection on the concrete below the truck, he could not see the lens or the light. Walker and Iselin testified that they were looking ahead as they approached, but could not see that tail-light until they were within sixty feet, although Walker had been able to see the tail-light of another automobile, which he had overtaken shortly before, when he was from two to three hundred feet of it, and before the rays from his headlight contacted with it. Trossen, who sat in the rear seat of Walker's car, testified that the taillight seemed to be muddy and dirty before the collision, but that it was nice and bright after he returned from Cambridge, where he had gone for medical attention. In view of that evidence, it was for the jury to decide whether that light was adequate at the time of the collision. If it was muddy and dirty, and not sufficiently observable, then the jury was warranted in finding that it was inadequate, and that Hegley and his employer were negligent in that respect. Likewise, if but shortly prior to the collision the tail-light of another overtaken vehicle was observable to Walker when it was two to three hundred feet away, then it was within the province of the jury to find that the inadequacy of the truck's tail-light and the defendants' negligence in that respect was a cause of the collision.

[4][5] Defendants further contend that they were not negligent in stopping the truck on the concrete because an emergency confronted Hegley, and that the stopping of the truck was not a cause of the collision. Likewise, it is contended that Hegley was not negligent in failing to remove the truck, and that that failure was not a cause of the collision. Although it is true that the shoulder of the highway was soft and muddy opposite the place where Hegley left the truck stand on the concrete, there was proof that ten rods further east there was a private driveway which led off to the north of the roadway. There was also proof that after first halting the truck because of the rumbling noise, Hegley moved it backward and forward three or four times to place it over the jack, and the defendants' mechanic Showen testified that the three remaining studs were sufficient to keep the wheels in place on the truck so that it might have run five or ten miles in that condition. If that was correct, then the truck could have been driven at least the distance of ten rods on to the private driveway, and in view of...