29 N.W.2d 719 | Wis. | 1947
These were two actions, each commenced on December 27, 1945. The first action was by Fred B. Schultz, plaintiff, against Charles T. Brogan and AEtna Casualty Surety Company, defendants, to recover damages for personal injuries arising out of a collision between the car of Brogan and a parked automobile owned by Leo Anton Wiedmeyer. Upon motion of defendants, Leo Anton Wiedmeyer and Andrew N. Marx were made parties defendant.
The second action was by Lillian Schultz, wife of Fred B. Schultz, prosecuted against the same parties and for the same cause. The actions were consolidated for trial, but during the trial AEtna Casualty Surety Company made compromise settlements with each plaintiff. Trial was to the court and jury and a special verdict was rendered. The details of this special verdict will be considered in the course of the opinion. After verdict judgment was entered in favor of AEtna Casualty Surety Company against Milwaukee Automobile Insurance Company for $1,667.55, and $374.19 damages and costs. The Milwaukee Automobile Insurance Company appeals. The material facts will be stated in the opinion. Appellant claims that in so far as it appears to furnish any basis for liability of appellant's insureds the special verdict should have been set aside because without support in the evidence. More precisely the question is whether upon facts which the jury was entitled to believe, there is any showing that the negligence of appellant's insureds was a cause of injury to plaintiff. If it was not there can be no contribution. *392
The accident happened on September 9, 1945, about 1:30 a.m., in Washington county. Defendant Wiedmeyer was driving east on Highway 33 on a concrete highway eighteen feet wide. At a point on the highway a short distance to the east of an intersection of Highway 33 with County Trunk Highway Z, sometimes called "Bastian's Corners," Wiedmeyer's car ran off the pavement and into the ditch on the north or left side of the road. The point at which it ran off the road was about four hundred sixty feet east of Bastian's Corners. Shortly thereafter defendant Marx, also driving east, saw the situation, stopped, attached a cable to the front of Wiedmeyer's car and pulled him back onto the right or south side of the highway. After this operation both cars came to a stop on the south or right-hand side of the road facing east, Wiedmeyer's car being, of course, behind the Marx car which had pulled it out. The evidence is in conflict as to how far the two parked cars encroached upon the roadway, but there is evidence that the Marx car was on the concrete to the extent of four feet which left less than fifteen feet of the roadway for other traffic.
Brogan was driving east on Highway 33. He first saw the Wiedmeyer car when he was at the intersection. He noticed that it was parked on the south side of the center line but at this time could not determine whether all of it was on the concrete or not. As he approached the Wiedmeyer car he applied his. brakes to slow down with the intention of going by but claims to have noticed people standing in the north lane opposite the cars and he then applied his brakes with full force. The rear portion of his car thereupon slewed to the south and struck the left rear fender of the Wiedmeyer car. Plaintiffs were at a tavern at the intersection, saw the ditched car and walked eastward toward it. At the time the Wiedmeyer car was struck plaintiffs were behind the car and were struck by the Brogan car either just before or at about the same time that it hit the Wiedmeyer car. No question is raised upon this appeal as to Brogan's negligence. *393
The jury exonerated both Wiedmeyer and Marx from the charge of "parking, stopping, or leaving standing his automobile upon the highway when it was practical to park, stop, or leave such vehicle standing off the roadway of the highway." Each, however, was found guilty of parking his automobile on the highway without leaving a clear and unobstructed width of not less than fifteen feet upon the roadway of the highway opposite his car. The negligence of Wiedmeyer who owned the rear or towed car was found to be a cause of plaintiffs' injuries but that of Marx was found not to have had a causal relation to such injuries.
Appellant first contends that there is no evidence to support the jury's finding that the Wiedmeyer car was illegally parked. This can be disposed of without much discussion. We find testimony in the record to the effect that it did encroach upon the highway four feet and since the concrete roadway was eighteen feet in width, this left only fourteen feet of passage opposite the parked vehicle and this is one foot less than the clearance requirements of sec.
Appellant's principal contention is that the negligence of Wiedmeyer and Marx in parking so as to leave less than fifteen feet of roadway to the left of parked cars was not the cause of plaintiffs' injuries or what may amount to the same thing, that Brogan's negligence as to speed, lookout, management and control was an intervening cause of the injury. It is generally held, (1) that cause in the purely philosophic sense is not what the courts are searching for in negligence cases, Restatement, 2 Torts, sec. 431; (2) that defendant's negligence must have made a substantial contribution to the accident or injury,Osborne v. Montgomery,
"The word `substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there always lurks the idea of responsibility, rather than in the so-called `philosophic sense,' which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called `philosophic sense,' yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes."
Obviously the first inquiry in every case is whether defendant's acts had any substantial effect in producing the accident or injury. As pointed out in Osborne v. Montgomery, supra, this is ordinarily a question of fact if the evidence is conflicting or if different inferences can be drawn from it. If it is determined that defendant's negligence did not make a substantial contribution to the injury that closes the inquiry and no consideration of policy factors is called for. It is only when the substantial character of the contribution is established that a question can arise whether defendant is to be relieved from an ultimate finding of cause by some policy factor delimiting legal cause.
In the view that this court takes of this case we reach only the question whether defendant's negligence made any substantial contribution to plaintiffs' injuries. Attention should be called to the fact that we are not here concerned with the causal relation between the act of Marx and Wiedmeyer in parking on the highway and the injury because upon sufficient evidence a jury has found that that act was nonnegligent. The inquiry is whether the specific act of negligence found, namely, parking the cars in such a way as to leave less than fifteen feet of clearance, made any physical or other contribution to the accident. It should be noted at the outset that the collision *395
between the Wiedmeyer and Brogan cars had no independent materiality. Plaintiffs were not standing in front of the Wiedmeyer car in such a way that it was driven into them by the collision as was the case in Felix v. Soderberg,
The case strongly resembles one fact situation commented on in Guderyon v. Wisconsin Telephone Co.
It is, of course, true in this case that the jury were not required to believe Brogan's testimony that there were people standing in the highway, and it can be contended with some force that having found him guilty of negligence they did not believe this testimony. However, rejecting the testimony of Brogan does not create evidence, and dropping his explanation of the accident from the case there is no evidence whatever that the extra foot of encroachment in any way affected the situation.
Having concluded that there is no relation between the negligence found and the injury to plaintiffs, there is no occasion to consider any policy factors including such as may be derived from a consideration of the purpose and intent of the statute. *397
This makes it unnecessary to discuss a great many of the cases cited, some of which may appear superficially to bear upon this case, but in all of which some item properly denominated a policy factor was the deciding element. The case most obviously failing in this class is Kitter v. Lenard,
By the Court. — Judgments reversed, and cause remanded with directions to enter judgment dismissing the complaints as against Marx and Wiedmeyer and the complaint of respondent for contribution. *398