221 Wis. 359 | Wis. | 1936
The judgments appealed from were based upon certain undisputed facts and certain other facts found in a special verdict of a jury. In that verdict the court directed a finding that James H. Lusha, through his employees, was negligent in parking or leaving his .truck standing upon the
Appellant’s first and second assignments of error are that the court erred, (1) “in answering' the question in the verdict as to Lusha’s negligence in failing to put out flares, there being a conflict in the testimony as to the time and opportunity to set them out;” and (2) “in finding as a matter of law that failing to set out the flares was a cause of the accident, for in all probability the. accident would have occurred even had the flares been set, and the court invaded the province of the jury in answering the question.” In passing upon those assignments of error there must be taken into consideration the following facts which appear either by admissions in the pleadings or undisputed evidence, or by giving to the evidence in dispute the construction most favorable to the appellants that is possible: The collision occurred shortly after midnight on September 23, 1934, on State Trunk Highway No; 57, three hundred or four hundred feet north of its intersection with Highway No. 114. The right front
“No person shall, during any period of time from one-half hour after sunset to one-half hour before sunrise, permit a motor truck, truck tractor, trailer or semitrailer to stand upon any traveled portion of a highway outside of the corporate limits of any incorporated city or village, unless such vehicle is protected by a burning fusee placed on the extreme left side of the vehicle, or by lights placed approximately one hundred twenty-five feet to the front and rear of the vehicle,*364 to clearly indicate the presence of such vehicle. Such fusees or lights shall be kept burning the entire time such vehicle is left standing. Every such vehicle operated on the highways shall be provided at all times with the fusees or other lights required to comply with this subsection.”
That statute is a very important and salutary enactment for the purpose of avoiding one of the most serious menaces that have at times confronted motorists upon the public highways. Some of the most deplorable collisions and shocking consequences involved in cases reviewed by this court were due to leaving a motor truck standing upon the traveled portion of a highway in the dark without some such adequate warning lights as are now prescribed by that statute for the protection of approaching motorists. In applying that statute the operator of the standing vehicle must, of course, be allowed sufficient time to enable him to place the prescribed fusee or lights. Plowever, in this case, two of defendant’s employees were at hand and in charge of the outfit, and at least five or six minutes elapsed between the stopping thereof and the collision. The outfit was not upset or otherwise damaged upon the right rear wheel dropping off, and neither of defendant’s employees was injured or incapacitated in any manner. It certainly did not require more than a minute for them to dismount and ascertain that the trailer was standing upon the highway. In fact, within a minute or two Brotski and Lusha had done not only that and observed the northbound truck approaching, but the latter had also returned to a point twenty-five feet ahead of the tractor and from there flagged and boarded that truck to go to Hilbert. Certainly, at least immediately after seeing that the rear of the trailer was on the concrete roadway, Lusha’s and Brotski’s first duty was to place lights as required by sec. 85.06 (2) (d), Stats. Prompt compliance in that respect was much more essential at that time, than it was for Lusha to go to- Hilbert for assistance. There was no safety statute, or rule of law
However, there is evidence which necessitates the conclusion that the court erred in also holding that the failure to place such a light was a cause of plaintiff’s injury as a matter of law. Although under the evidence the jury could have found that that failure was such a cause, it was not so conclusively to that effect, that the court was warranted in taking that issue from the jury, in view of the factual situation. Under the evidence, the plaintiff, as the court rightly directed, was negligent in failing to keep a sufficient lookout, and also sufficient control of his car; and his negligence in those respects was a cause of his injury. The headlights on his automobile were lit, and enabled him to see two hundred feet ahead, under the existing conditions. Therefore, if he had kept the lookout which he could and should have kept
Another assignment of error is that “the court erred in submitting a question on Lusha’s negligence as to leaving his car standing on the traveled portion of the highway, contrary to statute, because it was undisputed that the truck was disabled and could not be moved after it stopped, hence the statutory prohibition against leaving the car standing on the highway did not apply.” The statutory provisions referred to in that assignment are subs. (1) and (8) of sec. 85.19, Stats. Sub. (1) provides:
“No person shall park, stop, or leave standing any vehicle, whether attended or unattended, upon any highway outside a business or residence district when it is practical to park, stop or leave such vehicle standing off the roadway of such highway, provided that in no event shall any person park, stop or leave standing any vehicle, whether attended or unattended,*367 upon any highway unless a clear and unobstructed width of no less than fifteen feet upon the roadway of such highway opposite such standing vehicle shall be left for the free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction along such highway.”
Defendants contend that the tractor became so disabled that it was impossible to move it and the trailer off the roadway so as to avoid violating those provisions; and that, therefore, the leaving the outfit on the roadway was excusable in law under sub. (8) of sec. 85.19, Stats., which provides that:
“The provisions of this section shall not apply to the operator of any vehicle which is disabled while on the highway in such a manner or to such extent that it is impossible to avoid stopping or temporarily leaving such vehicle in such position.”
A review of the evidence discloses that whether or not it was “impossible to avoid stopping or temporarily leaving such vehicle in such position” on the concrete roadway upon the tractor becoming disabled was a jury issue because of testimony to the following effect: Although the right rear wheel and tires came off fifty to one hundred fifty feet south of the intersection of Highways Nos. 57 and 114, the tractor did not come to a stop until it was three hundred to> four hundred feet north of that intersection, which in turn was two hundred thirty-six feet wide (and barricaded at the time for one hundred ten feet with flares set along side of it). Consequently, the outfit traveled a total distance of five hundred eighty to seven hundred eighty feet after the wheel and tires came off. While it traveled that distance with the right rear axle and brake drum dragging on the concrete roadway of Highway No. 57, neither Lusha nor Brotski looked for- a place, or made any effort to stop off that roadway or to turn east or west at that intersection. Likewise, although both of them knew that the seven feet wide travelable shoulder on
As there must be a reversal of the judgments for reasons stated above, no purpose will be served by discussing appellant’s assignment of error in relation to- the jury’s findings as to comparative negligence.
By the Court. — Judgments reversed, and causes remanded with directions to enter an order in each action, granting a new trial.