Opinion
June 3, 1952 —
June 20, 1952.
APPEAL from an order of the county court of Waukesha county: ALLEN D. YOUNG, Judge. Reversed.
For the appellant there were briefs by Quarles, Spence Quarles, attorneys, and Arthur Wickham and Edmund W. Powell of counsel, all of Milwaukee, and oral argument by Mr. Powell.
For the respondent the cause was submitted on the brief of Lowry Hunter of Waukesha.
Action for personal injuries and property damage arising out of a collision between plaintiff's automobile and defendant's tractor-trailer unit at the intersection of a town road and Highway 75 in Kenosha county. The case was tried to the court and a jury; a special verdict was returned finding each party causally negligent and apportioning the negligence fifty per cent to the plaintiff and fifty per cent to the defendant. On motions after verdict the trial court granted a new trial and from an order granting a new trial, defendant appeals.
The accident occurred on a clear, bright day and the pavement was dry. Both vehicles were traveling north on Highway 75, which has a twenty-foot-wide black-top roadway, the plaintiff following the defendant's truck. Plaintiff first sighted defendant's unit, a red vehicle thirty-five feet long, about a mile south of the intersection when the two vehicles were approximately a mile apart. His view of the truck was unobstructed except for a few seconds at a point seventeen hundred to eighteen hundred feet south of the intersection where the truck went over a rise. Plaintiff came over the rise at about forty-five to fifty miles per hour and saw the truck about half way down the grade toward the intersection. Defendant testified he had been proceeding at a rate of twenty-five to thirty miles per hour and began to slow down about three hundred to three hundred fifty feet south of the intersection, so that when he was about twenty-five feet from the intersection his speed was between five and ten miles per hour. Plaintiff made no estimate of the speed of the truck but knew he was steadily gaining on it. Plaintiff's son, who was a passenger in the car, estimated the speed of the truck at fifteen miles per hour as it entered the intersection although he was "not in a position to positively tell that." The truck was completely in the right lane of travel, its left wheels to the right of the center line. Plaintiff first noticed the truck slowing down when it was about one hundred fifty feet from the intersection and at that time he was about one hundred feet behind and traveling at about thirty miles per hour.
When the front of the truck was about even with the center line of the westerly town road it began a left turn. Plaintiff was then about sixty feet behind and traveling around twenty-five miles per hour. When the truck turned plaintiff applied his brakes and blew his horn. He also turned right in an attempt to avoid hitting the truck. The impact was between the left side of plaintiff's car and the tail gate of the truck which extended straight out at the rear three feet beyond the body of the truck.
Skid marks made by the left tires of plaintiff's car extended from a point approximately thirty feet south of the point of impact at which they measured two or three feet to the right of the center line and ran up to the point of impact where they were about four feet from the center line.
Defendant at no time gave a signal of his intention to turn left. He testified that he began to apply his brakes when he was about three hundred feet south of the intersection; that he had a vacuum control on the trailer brakes which operated the stop lights. He also testified that the stop lights at the rear of his vehicle were working immediately after the accident; but plaintiff testified that he did not see them light up at any time prior to the impact.
Defendant testified that he made two observations to the rear after coming over the crest of the hill, before he made his turn, and saw no vehicles behind him.
At the conclusion of the testimony defendant moved for a directed verdict. This was denied by the court.
During a recess after the close of the testimony and before arguments to the jury, one of the jurors met defendant's attorney outside of the courtroom and asked if he represented the insurance company. The attorney answered "No." Such answer was made because it had been agreed upon between the parties at the beginning of the trial that there would be no reference to insurance since there were insurance companies on both cars interested in the case but they were not parties to the action. Immediately upon opening of court after the incident occurred, defendant's counsel reported the matter to the court and plaintiff's attorney in the absence of the jury. A motion for mistrial was made and denied by the court with the comment, "You can take that all up later on."
The jury found defendant negligent with respect to lookout but that such negligence was not causal. The court found defendant causally negligent as a matter of law for failing to give a proper signal of his intention to turn left. It also found defendant negligent with respect to his position upon the highway immediately prior to his turning left, but the jury found such negligence not causal. Plaintiff was found causally negligent with respect to management and control of his automobile, and the negligence was apportioned fifty per cent to the plaintiff and fifty per cent to the defendant.
Upon motions after verdict the trial court set aside the verdict and ordered a new trial in the interests of justice based upon the communication between the juror and defendant's attorney.
On the question of plaintiff's negligence, these facts from his own testimony are significant: When he came over the hill at a distance of eighteen hundred feet from the intersection, he saw defendant's truck half way down, or about nine hundred feet ahead of him. Plaintiff's speed was then forty-five to fifty miles per hour. When the truck was four hundred to five hundred feet from the intersection, the vehicles were about two hundred feet apart. He knew that he was steadily gaining on the truck, as was obvious, since he covered about eleven hundred to twelve hundred feet while the truck covered five hundred. He first noticed that the truck was slowing down when it was one hundred fifty feet from the intersection and he was one hundred feet behind it, and his speed was then thirty miles per hour. Yet he traveled the last two hundred fifty feet to the point of impact, after being alerted to the fact that the truck was slowing down and at a time when he was traveling only thirty miles per hour, without bringing his car under control — a distance within which he should have been able to stop completely on the dry pavement.
Plaintiff argues that he was trapped by the truck's "sudden" left turn at the intersection; that he could not turn left to avoid the accident because the truck occupied that lane; that he could not continue straight ahead because it also occupied the right lane; that he could not safely turn right for fear of striking a concrete abutment and pole located on the right side of the highway.
The right lane of the black-top highway was ten feet wide plus four feet of gravel shoulder. Exhibit 1, a map of the intersection drawn to a scale of one inch to forty feet, shows that both the culvert and the pole were more than twenty feet from the center line of the highway.
In the first place, plaintiff's own testimony that he noticed the truck slowing down when he was two hundred fifty feet from the intersection and his son's estimate that the speed of the truck was fifteen miles per hour do not support his contention that it made a sudden left turn. There can be no other conclusion than that the slowing down was gradual and apparent to the plaintiff for some distance before the turn was made. Secondly, the fact that the truck occupied the left lane when it began to turn could have no causal relation to the accident. Plaintiff admitted he had no intention of passing the truck until after it had cleared the intersection; yet he ran into it within the intersection. Lastly, it is apparent that, had he maintained adequate control of his automobile, he could have stopped completely or passed the truck on the right without striking either the culvert or the pole. Upon the basis of plaintiff's own testimony, the evidence compels the conclusion that he would have been unable to avoid the collision even if the truck had not turned but had continued on at its reduced speed.
In Hephner v. Wolf (1952), 261 Wis. 191, 52 N.W.2d 390, plaintiff sued for injuries sustained when his automobile crashed at night into the rear end of a preceding truck, which had momentarily stopped behind the defendant's automobile, which had stopped because of a flat tire. The evidence showed that plaintiff failed timely to see the lights of either stopped vehicle and although he had ample room on the left for passing, he failed to so manage and control his vehicle as to avoid the collision. It was there held that plaintiff's negligence was greater than that of the defendant in parking his car on the highway.
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. While this was denied by the occupants of the Phephles car the jury found in favor of the plaintiff s upon this issue. Assuming that the Phephles car was in the position claimed by the plaintiffs, that could have no causal relation to the accident. Olson had no intention of turning to the left. He testified that when it became apparent that he would have to stop his car, he intended to turn to the right and did turn to the right enough to bring his right wheel upon the shoulder of the highway. Instead of the position of Phephles' car being a cause of the accident, if it had been still farther to the left, the accident would have been avoided."
The same reasoning is applicable to the facts here. If defendant's truck had been farther to the left there would have been no accident.
It is the duty of the driver of the following car, under circumstances where as here he has ample opportunity to do so, to have his car under such control or to maintain such a distance behind the preceding vehicle as will enable him to stop his car and avoid a collision. Plaintiff's operation of his car so close to the rear of the truck and his failure to have his car under control made it impossible for him to avoid the accident and constituted, as a matter of law, negligence at least as great as any negligence of the defendant.
See also Quady v. Sickl (1952), 260 Wis. 348, 51 N.W.2d 3, 52 N.W.2d 134; Schultz v. Brogan (1947), 251 Wis. 390, 29 N.W.2d 719; Hoffmann v. Krause (1945), 247 Wis. 565, 20 N.W.2d 546; Ramsay v. Biemert (1935), 216 Wis. 631, 258 N.W. 355.
At the conclusion of the testimony defendant moved for a directed verdict and the court denied the motion. This was error; it should have directed a verdict for the defendant. Hence, the improper communication between the juror and defendant's counsel is immaterial.
By the Court. — Order reversed and cause remanded with directions to dismiss the plaintiff's complaint.
FAIRCHILD, J., took no part.