Opinion
January 10, 1958 —
February 4, 1958.
APPEAL from a judgment of the circuit court for Dodge county: W. C. O'CONNELL, Circuit Judge. Reversed.
For the appellant there were briefs and oral argument by Frank M. Coyne of Madison.
For the respondent there was a brief and oral argument by Robert G. Hartman of Juneau.
A collision occurred March 21, 1955, between a truck-tractor driven by Henry Kintopp and a truck driven by Walter Gilles. American Fidelity Casualty Company was the liability insurer of the tractor driven by Kintopp and it paid Gilles for personal injuries as well as other parties for property damage resulting from the collision. American claims that the collision was caused by the combined negligence of Kintopp and of John Schlesner, the driver of a milk truck. Travelers Indemnity Company is the liability insurer of the milk truck and American brought action against Travelers on April 25, 1956, seeking a judgment for contribution.
The collision occurred on Highway 26 approximately opposite the Grosenick farm driveway which enters Highway 26 from the west. Gilles was traveling south on Highway 26 and Schlesner had been traveling north followed by Kintopp. Schlesner stopped his truck with the intention of turning left into the Grosenick driveway and Kintopp's vehicle went into the southbound lane and collided with the truck driven by Gilles. Kintopp died as a result of the collision. The collision occurred about 6:40 a. m., and it was raining and foggy.
Schlesner testified that he had made a stop at Blew Inn just north of the junction of Highways 26 and 60. As he was in the parking area of Blew Inn facing toward Highway 26, he saw Kintopp coming from the south at approximately 30 or 35 miles per hour. Kintopp was approximately 1,400 feet south of Schlesner at that time and Schlesner started out into the highway. Both trucks proceeded north three or four miles to the point of the collision. Schlesner intended to turn left into the driveway. His left-turn signals were broken and he gave no hand signal. Schlesner testified that he was traveling five miles an hour for the last 100 feet prior to the driveway and that one would have to come to a stop in order to make the turn because any sudden turn would spill the milk. He testified that he would say he was stopped about ten seconds before the accident occurred. Walter Gilles testified that he was traveling at about 40 or 45 miles an hour as he approached the point of collision; that he saw the Schlesner and Kintopp vehicles coming; that he would estimate they were half a mile or a quarter of a mile south of the Grosenick driveway when he first saw them; he would say that the two vehicles were from one half to three fourths of a city block apart and that they were coming at a moderate speed. As Gilles got closer to the Grosenick driveway, he saw Schlesner slowing down and "as we got closer he did come to a halt." When he came to the complete stop Gilles was approximately one fourth to one half of a block away from Schlesner. Gilles had slowed down to 35 or 40 miles per hour because as he saw Schlesner slowing down he did not know whether Schlesner was going to turn into the driveway or not. When Schlesner began to reduce his speed Kintopp was a half block to three quarters of a block behind him and Kintopp was still going at the same speed as when first observed. Kintopp "applied his brakes and he slid across into my lane of traffic; then he headed east towards the ditch; and then from that time on the milk truck hid my vision of him . . . as the front end of my truck come to the rear end of the milk truck there was a blur and a crash and it was over with before I knew it . . . I never even saw him hit me." When Gilles first saw the Kintopp truck swerve into Gilles' lane he estimated that Kintopp was about 200 feet behind the Schlesner truck.
Schlesner testified that his truck had a taillight about four or four and one-half inches in diameter. This was a combination taillight and stop light. The taillight was lit as well as two amber clearance lights on the corner of the truck. When the brake pedal was depressed that would increase the redness of the taillight and that was the only signal that Schlesner gave Kintopp that he was going to stop. The jury was instructed as to the statutes relating to a required signal for turning left and for stopping or suddenly decreasing speed.
It was stipulated that the payments made by plaintiff in settlement of claims arising out of the collision totaled $12,307.43 and that they were reasonable.
The jury found that Kintopp was negligent with respect to lookout, management and control, and position on the roadway and that all such elements of negligence were causal. In answer to the question on speed, the answer inserted was going "too fast" but the cause question as to speed was answered "No." The jury said that Kintopp was not negligent as to passing. The jury found Schlesner negligent as to signaling for a left turn and giving adequate and timely signal of intention to stop. They found him not negligent as to lookout and management and control. They found that his negligence as to signaling for a left turn and giving an adequate and timely signal to stop were each causal. On motions after verdict the circuit court changed the answers as to the negligence of Schlesner with respect to signaling and the corresponding cause questions from "Yes" to "No." On September 9, 1957, judgment was entered dismissing the complaint and awarding costs to defendant. Plaintiff appealed.
It was established without dispute that Schlesner gave no signal for a left turn, that he intended to turn, and that his stop was made in order to carry out his intention. The accident happened, however, before he started to move toward the driveway.
Sec. 85.175(1), Stats. 1955, prohibits a turn "without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement." Sub. (2) provides: "A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning." Respondent claims that Schlesner did not violate sub. (1) because he did not actually turn his vehicle. Admittedly he had traveled the last 100 feet before his intended turn and had given no signal. We assume that respondent would say that Schlesner would have violated the statute when he first moved his car in a changed course. We think this is too narrow a view of the statute and that Schlesner violated the statute when, without having signaled for a turn, he stopped his truck for the purpose of making one. His stop in that position on the roadway could only be justified as a compliance with another part of sub. (1) which required him to delay his turn until it could be made with reasonable safety. Such a stop is one of the very frequent incidents of a left turn and one of the hazards doubtless considered by the legislature when it required advance warning. Having violated the statute, Schlesner was negligent in this respect as a matter of law and the court erred in clanging the jury's answer.
Did the evidence support the jury's finding that such negligence was causal? Schlesner testified that he was stationary for ten seconds. Gilles' testimony would support an inference that while Schlesner was stationary, Gilles traveled one fourth of a block at a speed of 40 miles per hour and a calculation that the interval was less than two seconds. If Schlesner correctly testified that he traveled at five miles per hour for the last 100 feet, a turning signal should have been given during more than seven seconds. Nine seconds before the collision, Kintopp may have been as much as 450 feet away from the point where Schlesner stopped. There is no evidence that the brake-activated stopping signal was given at any particular point and Kintopp may not have had the benefit of this signal until just before Schlesner stopped. Under these facts a timely left-turn signal might well have alerted Kintopp while he still had enough space in which to stop behind Schlesner. Although the jury found Kintopp negligent as to lookout, that finding could mean that he was not sufficiently attentive to notice and appreciate the reduction in Schlesner's speed but not that Kintopp would not have seen a turning signal if given.
Thus there was evidence to support the jury finding that the failure to give a left-turn signal was causal and it was error to change the answer.
This being an action for contribution, a finding of causal negligence in one respect is enough to support a judgment and it is unnecessary to examine the question of whether a proper stopping signal was given.
Respondent relies upon Tesch v. Wisconsin Public Service Corp. (1957), 2 Wis.2d 131, 85 N.W.2d 762, and asserts that it is controlling here. Respondent's argument overlooks the fact that the driver who suddenly decreased speed in the Tesch Case had no intention of turning and accordingly, had no duty to give a turning signal.
Respondent also relies upon Greenville Co-op. Gas Co. v. Lodesky (1951), 259 Wis. 376, 378, 48 N.W.2d 234. It is true that the facts in that case have great similarity to the instant case and the trial court and this court both held that the failure to give a turning signal was not causal. The court, however, interpreted certain evidence and findings of the jury upon other issues as meaning that, when the driver intending to turn left had come to a complete stop, the driver who had been following him still was 360 feet away and thus had "ample time to bring his truck to a stop if he had been driving with due caution." The situation in the Greenville Case might be compared with the instant case if Schlesner's testimony that he was stationary for ten seconds were accepted as fact.
It should be noted that the jury here found that Kintopp was not negligent with respect to passing and that answer was not disturbed by the trial court. This fact distinguishes the case from Bauer v. Bahr (1942), 240 Wis. 129, 2 N.W.2d 698, where the failure of Kaiser to give a turning signal was held not to be causal because Mrs. Bahr, the driver following him, knew that he was stopping, stopped briefly behind him, and then swung out into her left lane where the collision with the oncoming car occurred.
By the Court. — Judgment reversed, cause remanded with instructions to reinstate answers in the verdict in accordance with the opinion and enter judgment upon the verdict in favor of plaintiff for $6,153.71, together with costs.