Woodcock v. Home Mut. Cas. Co.

• Decision Date: 01 July 1948
• Citation: Woodcock v. Home Mut. Cas. Co., 253 Wis. 178, 33 N.W.2d 202 (Wis. 1948)
• Parties: WOODCOCK et al. v. HOME MUT. CASUALTY CO.
• Court: Wisconsin Supreme Court

253 Wis. 178

33 N.W.2d 202

WOODCOCK et al.

v.HOME MUT. CASUALTY CO.

Supreme Court of Wisconsin.

July 1, 1948.

Appeal from a judgment of the County Court of Chippewa County; Orrin H. Larrabee, Judge.

Reversed.

Action brought by Russell L. Woodcock, Cloe Woodcock and Glen Woodcock against Home Mutual Casualty Company, as the automobile liability insurer of Harvey Steinberg, for recovery from the insurer of damages for injuries sustained by plaintiffs while riding in a car operated by Russell L. Woodcock, which collided with a car operated by Steinberg. Plaintiffs alleged in a joint complaint that the collision was caused by Steinberg's negligence in stopping and leaving his car on a highway and failing to display proper and adequate tail lights, etc. The insurer in answer to the complaint denied plaintiffs' allegations that Steinberg was negligent in any of the respects charged, and therefore defendant demanded judgment dismissing the complaint; and in connection with its answer defendant alleged in a cross-complaint against Russell L. Woodcock that the collision and plaintiffs' injuries were caused by his negligent operation of his car and that therefore he was liable for damages sustained by Cloe and Glen Woodcock; and that if either of them recovered judgment against defendant, then Russell Woodcock was liable for contribution to it for half of any damages recovered by and paid to Cloe and Glen Woodcock by the insurer. Upon the trial of the issues under the pleadings and evidence, the jury found in a special verdict that the collision and resulting injuries were caused by negligence on the part of Steinberg and also Russell Woodcock, and that there was no contributory negligence or assumption of risk on the part of either Cloe or Glen Woodcock. Upon the verdict the court ordered judgment for their recovery from the insurer of the damages assessed by the jury; and also adjudged that Glen Woodcock was liable for contribution to the insurer of one half of said damages if paid by it to those plaintiffs. Defendant appealed from the judgment in so far as it provided for the payment by it of damages to Cloe and Glen Woodcock; and Russell Woodcock noticed a motion for review. Donald L. Farr, of Eau Claire, for appellant.

James A. McPhee, of Chippewa Falls (Stafford & Stafford and Robert F. Pfiffner, all of Chippewa Falls, of counsel), for respondents.

FRITZ, Justice.

There is but little conflict or dispute in any material respect under the evidence herein. The collision in question occurred about 9 P. M. on March 12, 1948, on a highway extending east and west; with a gradual upgrade from the west to the place of the collision. The roadway thereof was 21 feet wide, and there were level shoulders 15 to 18 feet wide on each side. Both drivers were driving eastward and were entirely familiar with the highway. A damp snow and sleet was falling and was 3 or 4 inches deep on the shoulders and also the roadway, which was very slippery. With proper headlights a driver could see about 60 to 100 feet. Cloe and Glen Woodcock were sitting with Russell Woodcock on the front seat of his car. Likewise Steinberg's wife was sitting with him on the front seat. He testified that with his lights on he could see the telephone poles and fences on each side of the road and the outline thereof until, without any warning, when a fuse burned out, the lights suddenly went out on his car, which he brought to a stop without seeing or knowing just where he was on the highway. Mrs. Steinberg testified that after the lights went out and before the collision she saw the fence on the south. Promptly upon stopping his car Steinberg took a flashlight which he had in the car and got out of it to ascertain its position on the highway While doing that he saw the car operated by Russell Woodcock approaching from the west. It appeared to Steinberg to be about three blocks away, and he thought that the distance between his disabled car and the oncoming car was so short that he did not have time to get back in his car and attempt to drive it off the roadway. So he thought he had to go toward and signal the approaching car to stop, and he ran about 60 feet toward it with his flashlight, which he moved back and forth and waved around. But the oncoming car did not appear to slow down and he had to jump out of the way to avoid it as it passed him and collided with the rear left corner of his car. When Steinberg was asked, ‘Why did you go back with your flashlight rather than get in and try to get off the road’, he testified, ‘It seemed to me the distance was so short I felt I didn't have time to go back into the car and drive it off away in that time. I had a flashlight and I thought to go back and signal the car. I felt that was the proper thing to do.’ He testified that from the time the fuse burned out and the lights went out to the time of the collision was a matter of very few seconds. When the court asked, ‘Can you give us an estimate on the number of seconds from the time you brought your car to a stop to the time you were 60 feet to the rear of it’, he replied, ‘That of course wouldn't be very definite. I should judge it was probably ten to twelve seconds.’ There is no dispute in this respect. Steinberg's car stopped from 60 to 75 feet east of a little knoll.

The jury found that at and just prior to the time of the collision Steinberg was not negligent in failing to have his automobile display proper and adequate tail lights; but that he was causally negligent (1) in stopping and leaving his automobile standing upon the highway when it was practical to park, stop and leave it standing off the roadway; (2) in stopping and leaving...