Opinion
December 2, 1949 —
December 30, 1949.
APPEALS from separate judgments of the county court of Columbia county: E. J. MORRISON, Judge. Reversed.
For the appellants there was a brief by Rogers Owens of Portage, and oral argument by Bruce J. Rogers and Harlan B. Rogers.
For the respondent in Case No. 123 there was a brief by Walker Latton of Portage, and oral argument by Dorothy Walker and Howard Latton.
For the respondents in Case No. 124 there was a brief by Langer Cross of Baraboo, and oral argument by Harold M. Langer.
Two separate actions, commenced to recover damages arising from the collision of two trucks, were consolidated for trial. Separate judgments were entered. The defendants Roy Cutsforth and Hardware Mutual Casualty Company appeal from the judgment entered against them, and the plaintiff Bertram Cutsforth appeals from the judgment dismissing his complaint.
On May 17, 1948, Jaeger Brothers, Inc., was engaged in a road-construction and repair project on State Trunk Highway 60 between the village of Arlington and the city of Lodi in Columbia county. This highway runs generally in an easterly and westerly direction and is intersected in the village of Arlington by County Trunk Highway I, which runs north and south. Work on this project started in the fall of 1947, and was resumed in the spring of 1948. Orland C. Stephens and Roy Cutsforth each worked on this project in the fall of 1947. The work of each consisted of driving a truck hauling gravel from a pit located on State Trunk Highway 60, from a point about three miles west of Arlington to a point on the highway where work was being done. On May 17, 1948, gravel was being hauled from a pit on County Trunk Highway I to a point on State Trunk Highway 60, some distance west of Arlington. On that date County Trunk Highway I was surfaced with black-top to a width of twenty-two feet. Stephens, driving his own 1941 Ford dump truck, began hauling gravel for the contractor over this route soon after the first day of May, 1948. Roy Cutsforth, driving a truck owned by his brother, Bertram Cutsforth, began hauling gravel over this same route on May 17, 1948, the date of the accident.
In the forenoon of that day Roy Cutsforth was driving north on County Trunk Highway I, a public highway open to travel. His truck was loaded with gravel and weighed, with its load, approximately sixteen tons. The day was clear and the road was dry. He was driving on his right or the east side of the road. At that time Stephens, driving his empty truck, was proceeding south toward the gravel pit to get another load of gravel. Each testified that he saw the other about a quarter of a mile away. When several hundred feet away Stephens turned to his left and began driving south in his left or the east lane of traffic. When the trucks were approximately one hundred fifty feet apart in the east lane each driver turned his truck to the west, and the trucks collided at a point partly on the shoulder and partly in a ditch bordering the highway. Stephens' excuse for driving on his left side of the highway prior to the collision was that a portion of the highway north of the point of collision was rough on the east side thereof, while it was smooth on the west side thereof and that it was a custom or agreement among the truck drivers that the loaded trucks be driven on the smooth portion of the highway and that the empty trucks be driven upon the rough portion of the highway even though it involved driving on the wrong side of the highway.
Evidence of this agreement, which was referred to as a custom, was offered and admitted over the objection of the appellants. The driver Cutsforth admitted upon cross-examination that upon highway-construction projects the truck drivers often made an agreement that the loaded trucks should have the right of way over smooth portions of the road even though it involved driving on the wrong side of the highway. He contended, however, that this agreement was only made when they were traveling upon private property or upon highways that were closed to public travel. There was evidence that truck drivers engaged upon this project in the fall of 1947 had some such agreement. Cutsforth, however, contended that this only applied to State Trunk Highway 60, which was closed to public travel. Whether or not that highway was closed to public travel in the fail of 1947 was a disputed issue.
The evidence as to the agreement between the truck drivers in the fall of 1947 was very indefinite. Stephens testified that there was an agreement or discussion among the truck drivers whenever two or three of them congregated, and upon such occasions the talk was that if there were any rough spots or soft holes the loaded truck would turn to the other side of the road and the empty trucks were to take the bad road. There was no evidence of any agreement as to who should determine what constituted a rough or bad road, or which driver should have the right of way, and it was admitted that no signals were given or contemplated by either driver.
The driver Cutsforth had started hauling gravel the day of the accident and was engaged in hauling his seventh load when the collision occurred. There was no evidence that he made any agreement with other drivers covering County Trunk Highway I or that there had in fact been a discussion among any of the drivers in May of that year.
The jury, by its special verdict, found Roy Cutsforth causally negligent with respect to the position of his truck on the highway, with respect to maintaining his truck under proper management and control, and with respect to keeping a proper lookout. Stephens was found to be causally negligent with respect to management and control of his truck, and the jury attributed eighty per cent of the negligence to Cutsforth and twenty per cent to Stephens.
These cases present two questions: (1) Was there a definite agreement among all of the truck drivers employed to haul gravel for Jaeger Brothers, Inc., over County Trunk Highway I on May 17, 1948, that would supplant the statutory rules of the road and excuse Stephens for driving on his left side of the highway just prior to the collision? (2) If there was such an agreement, could it be operative and effective upon a public highway open for public travel if contrary to the applicable statutory rules of the road?
Both questions are answered in the negative. The testimony in the record does not establish that there was a definite, workable, and understandable agreement. The respondents rely upon two decisions of this court. The first case, Steubing v. L. G. Arnold, Inc., 210 Wis. 513, 246 N.W. 554, involved a collision between an empty dump truck and one loaded with gravel on a road under construction that was closed to public travel. In that case there was no agreement among the truck drivers but all of the drivers were instructed by the contractor that loaded trucks were to have the right of way. The second case, Eich v. Brennan, 223 Wis. 174, 270 N.W. 47, involved a collision between an empty truck and one loaded with logs upon a logging road constructed on the reservation of the Menomonie Indians for use by truck drivers hauling logs. In that case there was no evidence that the road was used for purposes other than logging. Evidence of an agreement between all of the truck operators that the unloaded trucks were to give way to the loaded trucks was excluded. This court remanded the record for a new trial and held that such evidence should be admitted. There is no indication in either of said decisions that an agreement between all of the truck operators or instructions of the contractor could supplant the statutory rules of the road upon a public highway entirely open for public travel.
Evidence of the custom or agreement was received over the objection of the appellants and the jury was instructed that the custom or agreement, if properly established, would supplant the statutes governing travel upon a public highway. This was not a proper instruction.
By the Court. — Judgments reversed and causes remanded with directions to enter an order granting a new trial.