*1 Heritage Respondent, Company, Insurance Mutual County, Appellant.
October 30 November *2 brief For the there was a and oral argument by appellant counsel. Hopp, Alexander corporation Peck- was a brief Holden & For the there respondent and oral H. Peck- ham of Verlin Sheboygan, argument by ham. An insured of one Milton Se- Heritage,
Dieterich, J. bald, of a vehicle involved in a one-car was the owner Trunk located in the of She- accident on County JJ, runs in an direction from easterly Highway boygan, where accident occurred In the area from On the blacktop gravel. day changed JJ of was July gravel portion JJ been into had pushed of being graded. gravel process nine inches or windrow around eight high a ridge wide, a two to two and feet lane leaving approxi- one-half a lane feet wide to the south about 20-foot mately eight to the north of the windrow. Sebald, clear the noon hour on a son
During day, Eugene Sebald, four of Milton as accompanied by girls passengers, east on from 57 at a of 60 Highway traveling speed JJ to 65 miles hour. The first mile of was a per rolling road. Sebald saw the from blacktop orange painted grader a but did not notice the windrow of until hillcrest gravel some from the There was yards gravel portion JJ. sign. accident by Measurements taken at the scene of the traveled indicate that Sebald patrolman feet, then crossed lane to the south for 86 eight-foot *3 lane, about 20 feet to the east the north which he onto for 510 the windrow traveled feet and then he recrossed and returned to the lane which he traveled for 45 feet south before the road and for an additional 56 leaving driving feet before overturning.
All car injured. the were Mutual passengers Heritage Insurance settled all claims with the injured Company par- and included the release ties received releases which of the of county Sheboygan. answer, its of admits county Sheboygan that the
By made were fair and settlements reasonable. by Heritage Thus, submitted to only questions spe- cial verdict were an of requiring apportionment questions of the various negligence parties. its verdict found that special jury by at the time of the was not safe for JJ, of travel reason the absence of a sign public causal; that was causal- Sebald negligence lookout, control and ly negligent respect speed, with respect management, apportioned negligence at 80 all for those of one injuries, passenger, per- except and 20 cent to Sebald Eugene percent Sheboygan to the who sat injuries girl With respect fast he was front seat next to Sebald and knew how driv- its attributed verdict ing, jury by special negligence Sebald, county, percent percent Sheboygan five to the girl. percent issues been raised defendant
Two on this appeal: is liable a due- Whether Sheboygan county only (1) 81.15, Stats., care user under sec. or whether negli- to sec. gence respective parties compared pursuant 331.045, and was an Whether the of Sebald interven-
(2) cause ing thereby relieving Sheboygan liability. case, of this court establish that decisions the instant is based the absence or want of barrier which renders the un- warning signs 81.15, safe, constitutes actionable defect under sec. Stats.1 Port Keller v. 227 N. W. Washington (1929), Therefore, statute 284. comparative-negligence (sec. to actions under the brought 331.045) applies provisions Hales Wauwatosa of sec. 81.15. 275 Wis. therefore, By 82 N. W. (2d) implication, provi- 81.15 would extend sions of sec. to compensate any person *4 accident, as if for received the result of such injuries less with were found to causally negligent respect person accident than the town or county, that “Damages by highway defects; caused liabili Sec. 81.15 ty happen damages any person town and If or of to property insufficiency repairs of or of by his reason want of town, city, any any village keep- which or is bound in highway to person damages repair, sustaining right such shall a to town, city, village, the same from such . . .” recover concluded, to
As the trial court reference correctly user has to do with the condition of the highway due-care manner a travels over it. not to the person as The was instructed follows: jury “You are that counties are not lawby instructed required condition, their nor are to keep highways perfect they all to make safe for absolutely per- bound their highways them in a sons. are They required keep reasonably only The of a and maintain duty county safe condition. put a in such condition it would be reasonably that highway it who for travel on exercise public ordinary safe by persons care in over the Reasonable for safety traveling highway. in that travel care re- ordinary thereon persons using test of is the essential requirement legal spect sufficiency of It was of highway. duty as at the time in so maintain question travel exer- make the safe for by persons same care. are not the insurers of the Counties cising ordinary of their highways/' travelers safety that was not reason- found jury safe for a due-care user because there was no ably sign such of the grading operation. user warning counsel are raised respect Other questions had a post signs whether the barricades duty absence Whether operation. the grading a renders unsafe is a jury ques or barriers signs . Keller supra Port Washington, tion. attacked, findings
The rule is when jury’s par- have had the trial court’s as when they approval, ticularly case, is limited issue our to the wheth- inquiry in the instant credible evidence that under reasonable any there is er any evaluating view supports findings. had the benefit a view instant action evidence in a and therefore was better the scene of the to determine whether the absence than this court position
171 was a act on negligent of warning signs the part further contends that negligence Sheboygan county of the accident and re- of Sebald was cause intervening and that therefore is sulting injuries relieved of liability. 421, 16 v. Co. Walgreen (2d) (1962), Strahlendorf 823,
429, from Ryan 114 N. W. (2d) quoted following 270 Wis. 71 N. W. (2d) v. Cameron (1955), 408:
“ cause of is as a Where another intervening interposed was the defense a defendant who charged negligence actor, is first to find whether jury required first found a substantial fac- of such first actor was
negligence tor in the accident on which causing liability sought v. Standard Theater Gateway be predicated. Pfeifer 229, 55 N. W. 29. If the does find 262 Wis. (2d) jury fac- actor was a substantial first negligence then the defense of causing intervening tor unless the determines as a matter cause is court unavailing are factors which should relieve the policy of law that there As Richard V. first actor from Ibid. Professor liability. out in his recent article January, Campbell points Review, 5, 40, it is at this Law at page point Wisconsin Restatement, Torts, 1196, sec. p. that the principles 447, the court as an aid should be used by deciding ” factors.’ policy find that the of the first actor did was a substantial factor in causing county) (Sheboygan there Because we determine factors policy accident. relieve from which would Sheboygan county liability defense out of the case. drops intervening-cause new rule established this court Bielski 16 Wis. N. W. (2d) Schulze (1962), (2d) for does contribution not liability apply relating *6 the action because entered on judgment instant February 23, 1962, was entered the old rules and no motion the or taken appeal prior made to vacate to judgment was 6, March 1962. affirmed. Judgment
By Court.— In there was my opinion, no (dissenting). Gordon, J. notice give special duty part in this driver’s its operation persons position. grading circumstances, the activities themselves grading Under the notice. were entirely adequate accident occurred broad the weather daylight; was clear, Mr. observed the and Sebald bright, dry. county’s feet he machine 600 before reached the portion of grading He had traveled this road the highway being graded. many knew that the times before the accident and road surface point. at was gravel gravel ridge eight changed feet and was and two wide completely inches visible. high obscure, hidden, or was camouflaged There about nothing fact, In work condition highway. grading- of the from a which was visible to drivers crest not less than fully feet 288 away.
It should be noted that the accident did not also occur Mr. onset of the Sebald testified gravel at the ridge. feet, on about 86 then he traveled crossed gravel over another 510 feet. proceeded He gravel ridge then back and did gravel crossed over not leave ridge until feet 45 thereafter. me that under these circumstances It seems to there is of the part failing give no on notice Mr. other Sebald. The some type open of the county’s orange-colored obvious presence grader and itself was calculated to con- ridge gravel notice. Had this occurred stitute under nighttime
173 conditions, a otherwise obscured jury question might been presented.
In Loehe Fox Point v. Wis. (1948), 126, N. W. we said: (2d)
“There was on duty village give any the part of road conditions which and of themselves warning vide pro- notice to one timely ample using due care.” cases
There numerous road barriers which involving same doctrine. Butcher v. Racine apply 244; 208 N. W. Buckley Washington County Wis. 207 N. W. *7 I am authorized to state that Mr. Currie Justice Mr. dissent. join Hallows Justice State, Company, Inc., v. McDonald Lumber Appellant,
Respondent. October 30 November