Opinion
June 3, 1953 —
July 3, 1953.
APPEAL from a judgment of the circuit court for Waupaca county: HERBERT A. BUNDE, Circuit Judge. Affirmed.
For the appellants there was a brief by Benton, Bosser, Becker Fulton of Appleton, and oral argument by David L. Fulton.
For the respondents Albrent Freight Storage Corporation and Fidelity Casualty Company of New York there was a brief by Fisher, Reinholdt Peickert, attorneys, and Hiram D. Anderson, Jr., of counsel, all of Stevens Point, and oral argument by Mr. Anderson and Mr. Clifford W. Peickert.
For the respondents Albert Dombrowski and Louie Dombrowski there was a brief by D. O. Omholt of Iola, and Wendell McHenry of Waupaca, and oral argument by Mr. Omholt.
This action was brought by the plaintiffs Dombrowski for the recovery of damages for injury to their persons and property as the result of a motor vehicle accident which occurred on U.S. Highway 10, just within the south limits of the city of Waupaca on December 13, 1950, at about 7 a. m. The defendants are Mary Baehman, and Albrent Freight Storage Corporation (hereinafter referred to as "Albrent"), and their insurance carriers.
Mary Baehman resided in Weyauwega, which is located on Highway 10 a few miles to the southeast of Waupaca. On the morning of the accident she was driving a Chevrolet automobile on the way from Weyauwega to a knitting mill in Waupaca where she was employed, and riding with her were four lady passengers who were also employed at such knitting mill. Mrs. Baehman had difficulty steering her automobile because of a punctured tire and brought her car to a stop facing north on the east side of Highway 10 within the limits of the intersection of such highway and Riverside drive. The traveled portion of Highway 10 at such point is paved with concrete 20 feet wide and there were snowbanks two and one-half feet high which came up to within a foot or so of the edge of the concrete on each side. Riverside drive is a little-traveled highway running off from Highway 10 to the northeast, the intersection being in the shape of a "Y."
At the point where Mrs. Baehman parked her car in the intersection there was one opening in the snowbank just to the rear of her car for use of vehicles approaching from the south on Highway 10 and turning into Riverside drive, and another opening in the snowbank immediately in front of her car for the use of vehicles proceeding southerly on Highway 10 intending to turn into Riverside drive. These two openings were just wide enough to permit one motor vehicle to pass through. The Baehman automobile was parked close up against the snowbank on the east side of the highway so that it was necessary for the passengers to alight from the left side, as the right-side doors could not be used. Approximately five feet of the northbound traffic lane of Highway 10 was occupied by the Baehman car.
After stopping her car, Mrs. Baehman got out on the left side and started to walk up Riverside drive to summon help to change her tire. As she so got out of her automobile, two trucks owned by the defendant Albrent were proceeding northerly on Highway 10 some distance to the south, one being about 500 feet ahead of the other. The lead truck will be hereinafter referred to as truck "A," and the following truck will hereinafter be referred to as truck "B."
The driver of truck A saw the stopped Baehman car obstructing his traffic lane and took his foot off the accelerator and slackened his speed. He noticed a lady getting out of the car and walking away and assumed that the Baehman car had momentarily stopped at the intersection to discharge a passenger and that after so doing it would proceed along its way. There was nothing to indicate to the driver of truck A that such car was in any way disabled. In the meantime, the Dombrowski truck was approaching from the north going south on Highway 10, and when the driver of truck A finally realized that the Baehman car was not going to move out of his way, as he had anticipated, he concluded that there was danger of both the Dombrowski truck and his own truck meeting just opposite the Baehman car, and there was not space enough left on the highway to permit this safely to be done. In order to avoid an accident the driver of truck A then turned his truck into the opening through the snowbank into Riverside drive immediately to the rear of the Baehman car, and brought his truck to a stop with about the rear five feet protruding onto the pavement of Highway 10. The driver of truck B, in the meantime, had had his attention diverted by a car approaching the highway from a private driveway to his right. He momentarily watched such car in order to ascertain whether it was going to stop before entering Highway 10. When he again looked forward, the distance between him and truck A had narrowed to about 200 feet, or less, and he then saw the brakes of truck A applied and such truck make a sharp turn into Riverside drive. The driver of truck B then concluded there must be an obstruction on the highway ahead and he applied his brakes to slow down his truck. The pavement was covered with tightly packed snow which made the roadway slippery and his truck started to skid. He tried to straighten out his truck without success and came to a stop crosswise on Highway 10, and his truck was immediately struck on the right side by the oncoming Dombrowski truck. The point of impact occurred about 18 feet to the south or rear of the Baehman parked car. Prior to the accident the driver of truck B had not sighted the Baehman car.
The action was tried to a court and jury, and the jury returned a special verdict exonerating the driver of the Dombrowski truck from all negligence; finding the driver of truck B of the defendant Albrent causally negligent; and finding the defendant Mary Baehman causally negligent with respect to parking her car on the highway when it was practicable to park off the roadway of the highway, and with respect to parking on a highway intersection. However, the jury exonerated her from any negligence with respect to parking without leaving a clear and unobstructed width of at least 15 feet upon the roadway opposite her vehicle. In answering the comparative-negligence question the jury attributed 70 per cent of the negligence to the driver of truck B, and 30 per cent to Mrs. Baehman. Mrs. Baehman and her insurance carrier moved to change the answers of the verdict unfavorable to them, which motions were denied; and the plaintiffs' motion for judgment on the verdict was granted, and judgment was entered in favor of the plaintiffs and against both defendants. From this judgment Mrs. Baehman and her insurance carrier have appealed.
The sole issue on this appeal is whether the negligence of the defendant Baehman, in parking her car on the highway as she did, was a legal cause of the accident in which plaintiffs Dombrowski sustained their damages. Appellants contend that the parking of the Baehman car on the highway was not a substantial factor in causing the accident, and in any event that the intervening negligence of the driver of Albrent truck A precludes Mrs. Baehman's negligence from being a legal cause of the accident.
The jury, by its special verdict, found that the negligence of Mrs. Baehman was " a natural cause of the collision." There is ample evidence in the record that the parking of the Baehman car on the highway caused the driver of Albrent truck A to apply his brakes and turn such truck off Highway 10 into Riverside drive, and that such acts of the driver of Albrent truck A in turn caused the driver of Albrent truck B to apply his brakes thereby resulting in such truck skidding into the path of the oncoming Dombrowski truck and the collision between such last two mentioned vehicles. Thus the evidence sustained the jury's finding as to causation so that Mrs. Baehman's negligence constituted a substantial factor in causing the collision.
It is not causation in its natural or physical aspect with which we are concerned on this appeal, but rather causation in its legal sense. Appellants are asking this court to hold as a matter of law that the acts of the driver of Albrent truck A constituted an intervening or superseding cause which precluded Mrs. Baehman's negligence from being a legal cause of the collision and resulting damages to the plaintiffs. No question of whether the driver of Albrent truck A was negligent was submitted to the jury, so there is no finding as to whether such driver's acts were negligent. However, for the purpose of passing upon appellants' contention, we will assume that such truck driver was negligent.
In our decision in the recent case of McFee v. Harker (1952), 261 Wis. 213, 52 N.W.2d 381, we dealt with this troublesome question of intervening cause at some length. We therein adopted the test of intervening cause laid down in Restatement, 2 Torts, p. 1196, sec. 447, as follows:
"The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if
"(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
"(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
"(c) the intervening act is a normal response to a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent."
In the rule of the Restatement as above set forth, there are three criteria to be applied to intervening acts of a third person in determining whether or not such negligence is a superseding cause. It is to be noted that the three criteria are in the alternative, and if the facts fall within any one of the three, the intervening act of the third person does not constitute a superseding cause which precludes the negligence of the first actor from being a legal cause of the harm done.
The alternative test set forth in subparagraph (c) of the foregoing quotation from the Restatement is directly applicable to the fact situation in the instant case. The intervening act of the driver of Albrent truck A was "a normal response" to the "situation created by" Mrs. Baehman's "conduct," in negligently parking her car as she did, and such truck driver's acts were "not extraordinarily negligent." Such acts of the driver of Albrent truck A, therefore, did not constitute an intervening or superseding cause which prevented Mrs. Baehman's negligence from constituting a legal cause of the accident.
We do not have such remoteness in the chain of causation between Mrs. Baehman's negligent act and the collision between the Dombrowski truck and Albrent truck B as would warrant this court, from considerations of public policy, in holding that the conscience of society would be shocked if Mrs. Baehman were to be held liable for plaintiffs' damages. See Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 238, 55 N.W.2d 29.
By the Court. — Judgment affirmed.