Wis.Stat. § 346.13(1) (1959) states: "The operator of a vehicle shall drive as nearly as practicable entirely within a single lane and shall not deviate from the traffic lane in which he is driving without first ascertaining that such movement can be made with safety to other vehicles approaching from the rear." The facts present here do not bring this case within the scope of Cole v. Phephles, 241 Wis. 155, 5 N.W.2d 755 (1942), where the Supreme Court of Wisconsin held there was no evidence that defendant, whose auto had been struck in the rear by plaintiff, was negligent. In Cole, unlike the present case, there was no evidence that defendant had been half way into the left lane and then swerved back into the right lane.
App.); Schlue v. Missouri Pacific Transp. Co., 62 S.W.2d 934 (Mo. App.); Cole v. Phephles, 241 Wis. 155, 5 N.W.2d 755. In order for the defendant to avoid liability, he must establish by a preponderance of the evidence, the causal connection between plaintiff's negligence and the collision.
He saw all that was ahead of him when he was from 400 to 600 feet north of the parked car, in ample time to have given some signal of his intention to stop if that were his intention. We have recognized that it may be a violation of sec. 85.40(1), Stats. 1941, to bring a car to a sudden and unexpected stop, Cole v. Phephles, 241 Wis. 155, 5 N.W.2d 755, and by sec. 85.175(3) the legislature has declared that: "No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in sections 85.176 and 85.177 to the driver of any vehicle immediately to the rear when there is opportunity to give such signal."
Although in that case plaintiff had room to pass the stopped cars on the left, the fact that here defendant's truck occupied both lanes of travel when he made his turn is immaterial since plaintiff, traveling in the right lane of the highway, had no intention of passing the truck until after it had cleared the intersection. The same situation existed in Cole v. Phephles (1942), 241 Wis. 155, 158, 5 N.W.2d 755: "On behalf of the plaintiff s it is claimed that at the time of the accident the left front wheel of the Phephles car was a little over the center line to the left.
"It seems to this court that there was an intervening cause here for which the defendants, Soman Home Furnishings and Royal Indemnity Insurance Company, are not responsible. This intervening cause was the sole cause of this collision between cars No. 4 and No. 3." In support of his conclusion he cited Walton v. Blauert, 256 Wis. 125, 40 N.W.2d 545; Cole v. Phephles, 241 Wis. 155, 5 N.W.2d 755. We are of the opinion that the trial court properly set aside the answer to question 2 of the special verdict on the grounds that the stopping of the hearse on the highway under the circumstances then and there present was not a proximate cause of the collision in question.
Defendants contend that the six-foot shoulder was more than adequate to accommodate the 1937 Pontiac automobile which plaintiff was driving but, as stated earlier in this opinion, the record shows that it was a steep shoulder, four feet of gravel and two feet of grass, with a deep ditch along the shoulder. See Cole v. Phephles (1942), 241 Wis. 155, 5 N.W.2d 755, in which this court passed upon a similar issue as to whether momentary and involuntary stopping was governed by sec. 85.19, Stats. It is clear that the parking statute was never intended to apply to plaintiff or to persons in a similar situation. Plaintiff operated his car with ordinary care in stopping behind the Kuhlow car as he did. If he did anticipate any possible harm from the temporary stopping, he had the right to rely on sec. 85.40 (2) (b), Stats., the doctrine of the Lauson Case, and the assumption that other drivers would use ordinary care.