217 Wis. 115 | Wis. | 1935
Lead Opinion
Plaintiff appealed from''a 'judgment for the recovery from the defendant Hoseth of eighty per cent of the amount assessed as the damages sustained by plaintiff as the result of negligence of the defendant Hoseth, as well as of the plaintiff. That judgment also dismissed plaintiff’s complaint against the' defendant Brucker, and plaintiff ap
When plaintiff was injured on August 24, 1932, he was employed by Rusk county to operate a motorized road-grading machine on a state highway, which had a twenty-eight feet wide oiled-gravel surfaced roadway. Ahead of the grader blade on that vehicle there were scarifier teeth, which extended downward so as to break up the surface of the roadway. Shortly before the accident, as plaintiff was driving the grader westward on the south, which was-his .left, side of the roadway, he discovered that the teeth were not operating properly because the lower ends thereof were dull. Thereupon he stopped the grader on the south half of the roadway and got down under it to reverse the teeth, so as to use the other end thereof, which was sharper. That operation would have required from ten to fifteen minutes, but before he completed it, he was injured as the result of a collision between Hoseth’s motor-truck and the grader. Hoseth, driving eastward on the south half of the roadway, had seen the grader as he approached, but he claims that, as he was about to pass it, dust or a small pebble, thrown up by a passing west-bound automobile and striking his eye, caused him to close both eyes and take his hand off the steering wheel.
The jury found that Hoseth’s negligence as to speed and the manner in which he was driving was a cause of the plaintiff’s injury, and that the plaintiff was not negligent in-going under the grader, into a place of danger, where he might be injured. However, the court, in directing certain answers to some of the questions in the verdict, held that plaintiff was
As is disclosed by instructions given to the jury, the court fully recognized that, under sec. 85.18 (12), Stats., vehicles actually engaged in maintaining the highway are permitted to operate on the left-hand side of the highway when they are designated according to the standard method of marking such vehicles, as promulgated by the state highway commission; and that therefore, while the road-grader was traveling and operating on the highway, the plaintiff was not negligent in having it on the left-hand side of the road. But the court also instructed that,—
“independent of statute it was his [plaintiff’s] duty to be careful and so handle the grader that he had due regard for the rights of others and not to create any unnecessarily dangerous situation and to exercise ordinary care. He should obey the statute and then he should exercise ordinary care independent of statute;”
and, in that connection, the court directed the finding that the plaintiff was guilty of contributory negligence in stopping and permitting the grader to remain on the traveled portion of the highway while changing the teeth. Those directed findings by the court are challenged by plaintiff on the ground that the record presents no evidence to sustain those findings. The record Moes disclose, without any contradiction or conflict in the evidence, that at the time of the accident plaintiff was voluntarily stopping and permitting the
“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. . .
Under that provision, the parking, stopping, or leaving of a vehicle on the roadway of a highway, outside of a business or residence district, is prohibited whenever it is practical to park, stop, or leave such vehicle standing off such roadway. As the only issue in that respect, under that provision, is whether it was practical to park, stop, or leave the grader stand off the roadway, the mere fact that it may have been inconvenient or less advantageous, in point of saving'time, or otherwise, to move the vehicle off the roadway, affords no excuse for failing to avoid a condition which obviously was considered such a source of danger to the traveling public that it was expressly prohibited by that safety statute. The necessity for avoiding such a menace is emphasized by the fact that it is further provided in sec. 85.19 (1), Stats., that even when it is not practical to park, stop, or leave a vehicle off of such roadway, it shall nevertheless in no event be parked, stopped, or left upon any highway,—
“unless a clear and unobstructed width of no less than fifteen feet upon the roadway of such highway opposite such*120 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.”
The only provision in sec. 85.19, Stats., which recognizes any legal excuse for leaving a vehicle standing on the roadway of a highway is in sub. (8), which provides that the provisions of sec. 85.19, Stats.,—
“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.”
In the case at bar, that sub. (8) of sec. 85.19, Stats., is, however, inapplicable because the failure of the scarifier teeth to function properly did not disable the grader, in any manner or to any extent, so that it had become “impossible to avoid stopping or temporarily leaving” it on the roadway. Consequently, the stopping and leaving of the grader on the roadway, for the sole purpose of reversing the teeth, even though that operation required but ten or fifteen minutes, did not render the inhibition in sub. (1) of sec. 85.19, Stats., inapplicable, in view of sub. (8) of sec. 85.19, Stats. On the other hand, the provision in sec. 85.12 (5), Stats., that statutes ‘regulating the movement, parking, and standing of vehicles are not applicable—
“to authorized emergency vehicles while the operator of such vehicle is operating the same in an emergency in the necessary performance of public duties,”
is not applicable here because the grader was not an emergency vehicle, and the reversing of the teeth was not the operation of such a vehicle in such an emergency as must exist in order to entitle the operator thereof to exemption under that provision. Likewise inapplicable is sec. 85.18 (12), Stats., which permits vehicles actually engaged in maintaining the highway to operate on the left-hand side of the highway when designated as therein provided.
It follows that the court rightly concluded that the plaintiff was negligent, as a matter of law, in leaving the grader standing on the roadway. This court has held that negligence in leaving a vehicle standing on the traveled portion of a highway may be the proximate cause of injuries sustained as a result of another vehicle running into the standing vehicle, even though there remained sufficient clearance for the passage of the other vehicles, and negligence in the operation thereof was also a cause of the collision, Felix v. Soderberg, 207 Wis. 76, 240 N. W. 836; and that voluntarily leaving a vehicle stand on the street, so as to project over street railway tracks in violation of a city ordinance, constitutes, as a matter of law, negligence which is a contributing cause of damage to the vehicle as the result of an electric street-car colliding with it, although negligence on the part of the motorman was also a cause of that collision. Wisconsin Ice & Coal Co. v. Chicago, N. S. & M. R. R. 177 Wis. 427, 188 N. W. 482. So, in the case at bar, plaintiff’s violation of the statute by voluntarily leaving the grader standing on the south half of the roadway, could, as a matter of law,
Plaintiff also assigns as error the court’s ruling that the-plaintiff was not entitled to recover from the defendant Brucker, as the employer of Hoseth, for the damages sustained by plaintiff as the result of Hoseth’s negligence in operating the truck. Plaintiff contends that Brucker retained sufficient control of the details of the work which Hoseth was engaged in doing when the collision occurred to render Brucker liable for Hoseth’s negligence under the doctrine of respondeat superior.
The evidence establishes that under a written contract between Hoseth and Brucker, which designated the latter as “Dealer,” who “hires and retains” the former as a “Salesman,” Ploseth was “to perform sales work” for Brucker and to work on a purely commission basis, in the sale of commodities in which Brucker dealt; that Hoseth furnished, maintained, and repaired his own truck; that Hoseth procured and paid for automobile liability insurance, indemnifying him as well as Brucker, who had possession of the policy; that Brucker kept Hoseth supplied with a stock of merchandise, which, until sold by Hoseth, remained the property of Brucker, but which Hoseth transported in his truck as he traveled about in specified territory for the purpose of selling and delivering to retail dealers at prices fixed by Brucker ; that Hoseth paid the premiums on policies for fire and theft insurance on that stock, which were payable to Brucker; that Hoseth forwarded sales reports showing his sales, for which he remitted daily, and that he was not to extend credit unless approved by Brucker; that he returned weekly to Brucker’s place of business to replenish the stock which he carried; and that Brucker was then entitled to check the stock and require Hoseth to pay for any shortages. Hoseth had also agreed that he would sell or deal in only Brucker’s merchandise; that
Although Hoseth’s operations were conducted in territory specified by Brucker, the latter did not direct or control where, when, or in what manner Hoseth was to drive or to sell Brucker’s merchandise. Hoseth was operating his own truck, at his own expense, and on his own time. Excepting that he had to report and remit daily in respect to his sales and collections, and had to return weekly to St. Paul to replenish his stock of merchandise, and to enable Brucker to check the balance on hand, Hoseth was free to do as he saw-fit, without any control on the part of Brucker as to the manner in which the details of his work were to be performed. Consequently, -under the decisions in James v. Tobin-Sutton Co. 182 Wis. 36, 195 N. W. 848; Kruse v. Weigand, 204 Wis. 195, 235 N. W. 426; and Henry Haertel Service, Inc., v. Industrial Comm. 211 Wis. 455, 248 N. W. 430, the relationship which existed between Brucker and Hoseth was that of employer and independent contractor, and the court rightly concluded that the doctrine of respondeat superior was not
By the Court. — Judgment affirmed.
Dissenting Opinion
{dissenting). I respectfully dissent from so much of the decision as holds that the plaintiff was guilty of contributory negligence as a matter of law in stopping the grader upon the highway.
Sec. 85.18 (12) provides:
“Highway maintenance vehicles. Vehicles actually engaged in maintaining the highway are permitted to operate on the left hand side of the highway when they are designated according to the standard method of marking such vehicles as promulgated by the state highway commission.”
The grader clearly was a highway maintenance vehicle. It was actually engaged in maintaining the highway upon which it was stopped. It was equipped with red flags and was undisputedly “designated according to the standard method of marking such vehicles.” It was permitted by law to operate on the left-hand side of the highway. The court, however, holds that because the grader was stopped on the highway at the time of the collision it was not being operated on the highway and was subject to the provisions of sec. 85.19 (1) which, in part, 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;”
and that one in charge of a highway maintenance vehicle may not stop' it upon the highway without being guilty of negligence as a matter of law.
The language, “operate on the left-hand side of the highway,” reasonably construed in connection with the obvious purpose of sec. 85.18 (12), is, in my opinion, sufficiently broad to include not only movements of the vehicle along
I cannot concur in the view that the legislature intended to permit a highway maintenance vehicle, actually engaged in maintaining the highways, to be moved along the left-hand side of the highway, but did not intend to allow it to be stopped temporarily for purposes clearly incidental to the work it is performing. If it is reasonably necessary to stop such a vehicle for some adjustment, must it first be driven into the ditch or to some farmer’s road or yard before it lawfully may be stopped? Under the decision of the court it would seem that that must be done if the operator thereof would be free from negligence.
. It is my opinion that the legislature intended by the words “to operate on the left-hand side of the highway” to authorize highway maintenance vehicles to make such temporary and reasonable stops on the highway as are incidental to the work in which it is engaged, and that the plaintiff was in no respect negligent.