214 Wis. 519 | Wis. | 1934
The following opinion was filed February 6, 1934:
The plaintiffs Walker, Iselin, and Bashaw were injured at about 6 p. m. on a dark, foggy night in December, 1931, when an east-bound automobile operated
The court directed the jury to find that the defendants were negligent in not having a clearance signal; and the jury found that they were also negligent in failing to give an adequate warning; as to the stopping position of the truck on the highway; and as to removing the truck therefrom. The jury also found that defendants’ negligence in each of those respects, including the . failure to have a clearance signal, was a cause of the accident.
Defendants contend that the absence of such a reflective signal as would have satisfied the requirements of sec. 85.06 (3), Stats., was not a proximate cause of the accident under the existing circumstances, and that that statute was not applicable because it was intended only for the benefit of those who, while overtaking and. attempting to pass a vehicle, collided with it because, due to the absence of a clearance signal on the overtaken vehicle, they were unaware of its extraordinary width. As the evidence necessitates the conclusion that the absence of a reflective signal was not a
Defendants contend that there was no evidence to support the jury’s finding that they were negligent because of their failure to give adequate warning that the truck was on the roadway. There was no warning in that respect excepting such as was afforded by the tail light, and the evidence as to the adequacy of that light, at the time of the collision, is conflicting. It was lit and, when clean, as it was observed to be after the collision, it was visible from an automobile while approaching from eight hundred feet to within fifty feet. However, slush and dirt had splashed on the tail light while en route from Madison over wet concrete, and Lester Jarlsberg, who examined the light immediately after the collision, testified that, while there was a red reflection on the concrete below the truck, he could not see the lens or the light. Walker and Iselin testified that they were look-
Defendants further contend that they were not negligent in stopping the truck on the concrete because an emergency confronted Hegley, and that the stopping of the truck was not a cause of the collision. Likewise, it is contended that Hegley was not negligent in failing to remove the truck, and that that failure was not a cause of the collision. Although it is true that the shoulder of the highway was soft and muddy opposite the place where Hegley left the truck stand on the concrete, there was proof that ten rods further east there was a private driveway which led off to the north of the roadway. There was also proof that after first halting the truck because of the rumbling noise, Hegley moved it backward and forward three or four times to place it over
Sec. 85.19 (1), Stats., provides that:
“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 . . . 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.
And sub. (8) of that section provides that it is not applicable when a vehicle “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.”
It is obvious that that statute as to parking, stopping, or leaving a vehicle standing upon a highway was not to be considered applicable when a vehicle became disabled to such an extent that it was impossible to avoid temporarily stopping or leaving it standing on the highway. Proper instructions to that effect were given to the jury by the trial court in relation to the questions in the verdict on those issues. In so far as the word “stopping,” which was used in the special verdict, might be considered to mean merely the first
It follows that, as far as the defendants are concerned, the jury’s verdict was warranted by the evidence in all respects, excepting the finding that defendants’ negligence because of the absence of a clearance signal was a proximate cause.
On issues in relation to the defendants’ cross-complaint for contribution by Walker, the jury found that he was
As we recently said in Standard Accident Ins. Co. v. Runquist, 209 Wis. 97, 102, 244 N. W. 757:
“It is clearly established in Wisconsin that in order for one joint tortfeasor to havé contribution against another, it must be established that they have been subjected to a common liability and that the one seeking contribution has paid more than his equitable share of the common obligation.”
Among the cases cited in support of that statement was Zutter v. O’Connell, 200 Wis. 601, 229 N. W. 74. In that case injury to the plaintiff was caused by negligence of the defendant O’Connell, whose automobile collided with an automobile in which plaintiff was riding, and which was being negligently operated by his father. The latter’s negligence was also a cause, of plaintiffs injury, and therefore O’Connell sought contribution from plaintiff’s father. But as there could not, as a matter of law, be any, recovery by the son from his father, even though the latter’s negligence was a cause of the son’s injury, we held that there existed no such common liability as was the first essential for contribution. Thus, we then said:
“Although the verdict established the fact that the accident was the result of the concurring negligence of both Thomas O’Connell and Phillip Zutter, the right of contribution does not spring from concurring negligence. A common liability is the first essential for contribution. . . . In the absence of a common liability there can be no con*530 tribution. Although the negligence of Phillip Zutter concurred to produce the injuries suffered by Donald Zutter, his son, it gave rise to no liability on the part of Phillip Zutter. Thomas O’Connell, therefore, if and when he paid the judgment, discharged no part of Phillip Zutter’s liability, which must be the basis of a right to contribution from Phillip Zutter. His cross-complaint was properly dismissed.”
So, in the case at bar, even if negligence on the part of Walker concurred with the negligence of the defendants in causing injury to his guests, Iselin and Bashaw, if the latter were, not entitled, as a matter of law, to recover from Walker, as their host, for such negligence on his part, then there exists on his part no common liability because of which the defendants are entitled to contribution from Walker. Consequently, in the final analysis, the defendants’ right to contribution from Walker depends upon whether his concurring negligence, even though it was a cause of injury to Iselin and Bashaw, entitled them to recover from him, if they had sought to do so. In considering whether Iselin and Bashaw were entitled to recover from Walker, it must be noted that Walker’s lookout, which enabled him to see only forty to fifty feet ahead, when he knew that he could not stop within that distance, while going at the rate of thirty-five to forty miles per hour, at which he had traveled ever since leaving Madison, could well be regarded by the jury as not a proper lookout, and that under the existing circumstances the jury was well warranted in finding that Walker was negligent as to lookout and also as to the control and management, and that his negligence in each of those respects was a cause of the collision. However, both Iselin and Bashaw had assumed the risk because of such negligence. Both knew that Walker had been maintaining that speed of thirty-five to forty miles per hour ever since they left Madison; they were satisfied with Walker’s
As the accident occurred after the enactment of sec. 331.045, Stats., relating to comparative negligence, the 'jury’s findings that the negligence of the plaintiffs, Walker, Iselin, and Bashaw, was a cause of their injury, did not bar a recovery on the part of any plaintiff, unless such negligence on his part was -greater than that of the defendants. The jury did not so find. • .Instead, the jury found that, as between Walker and the defendants, the causal negligence on his part was twenty-five per cent, as compared to seventy-five per cent, of causal negligence on the part of the defendants; that, as between Iselin and the defendants, the causal negligence on Iselin’s part was fifteen per cent, as compared to eighty-five per cent, of causal negligence on the part of the defendants and also Walker; and that, as
It is contended on behalf of the defendants that errors occurred in the jury’s findings as to the proportion of the causal negligence of Iselin and Bashaw, respectively, because the jury was required; by reason of the form of the questions of the verdict as to each of those plaintiffs, to find the proportion or percentage of the causal negligence of each of them, on the one hand, and “of the defendants and also of Walker,” on the other hand. Thus, for -instance; the jury in'making its finding that there was fifteen per cent, of causal negligence on the part of Iselin, as compared to eighty-five per cent, of causal negligence of the defendants and Walker combined, was not required to find, but was in fact prevented from finding, the proportion of the negligence of Iselin to that of the only parties (i. e. the defendants) against whom recovery was sought by Iselin. Defendants contend that the jury, instead of being required to compare Iselin’s negligence with the combined negligence of the defendants and Walker, and to combine Walker’s
Sec. 331.045, Stats., in connection with providing that contributory negligence shall not bar a recovery in an action by any person for negligence “if such negligence was not as great as the negligence of the person against whom recovery is sought, . . .” provides that “any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the person re
In connection with remanding the cause for a retrial, it is proper to also note the defendants’ contention as to the inadequacy of the only instruction given to the jury in relation to the word “cause,” as used in some of the questions which were submitted for the verdict, to wit:
“This presents the simple question whether the relation of cause and effect exists between negligence on the part of defendants and the damages which the plaintiff sustained.”
That instruction was insufficient, and is subject to the criticism that “The court made no attempt to impress upon
By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.
A motion for a rehearing was denied, with $25 costs, on April 3, 1934.