Opinion
April 7, 1960 —
May 3, 1960.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Affirmed.
For the appellant there were briefs and oral argument by Frank X. Kinast of Beloit.
For the respondents there was a brief and oral argument by Crosby H. Summers of Janesville.
Action for damages for death by wrongful act. The death was caused when the automobile driven by defendant Reid struck Allen Gilbert, husband of plaintiff.
The accident occurred shortly after 4 a. m., January 1, 1958. Allen Gilbert operated a highway-wrecker service. Sometime after midnight Ernest Bohlman and a woman passenger, Mrs. Backman, were out in Bohlman's Pontiac automobile on a highway running north and south. Bohlman attempted to turn around at a place where a motel driveway entered the highway on the west side of the road. In trying to make the turn Bohlman stalled his car in a snowdrift and could not get out. By telephone Bohlman called Gilbert to extricate him. Gilbert came to the scene with his wrecking vehicle and hooked onto the front end of Bohlman's car and pulled the car onto the highway. Both the wrecking truck and the Pontiac were then facing south in the west half of the highway. It was then discovered that one of Bohlman's rear tires was flat and the parties decided to have the wrecker tow the Pontiac to a garage where Gilbert could change the tire.
To commence the operation Gilbert disengaged his towline from the front of the Pontiac and drove the wrecker around to the rear end of the Pontiac. Gilbert then backed the rear of his wrecker up to the rear of the Pontiac and hooked his hoisting apparatus onto the Pontiac's rear bumper and hoisted the rear wheels 14 to 16 inches above the pavement. There is testimony that a flashing red light above the body of the wrecker was operating at all times when that vehicle was at the scene. It was undisputed that the wrecker's bright headlights were burning while the wrecker was back-to-back with the Pontiac. The wrecker was then facing north in the west half of the highway. No one placed flares or other warning lights in the highway.
When the hoisting process began, Mr. Bohlman and Mrs. Backman got into the cab of the wrecker and sat there until after the collision. The last time Gilbert was seen alive was when Mrs. Backman, coming from the Pontiac to enter the cab of the wrecker, saw him crouching between the rear end of the wrecker and the rear end of Bohlman's car.
Bohlman did not testify and was not present at the trial. Mrs. Backman testified that as she sat in the wrecker's cab she saw headlights coming over a hill approximately 1,000 feet away. The slope was a gentle one and at the place where the two cars stood the highway was almost level. According to Mrs. Backman, the approaching car came straight at her on the pavement until at a very short distance away it swung over to the west shoulder and went by at a speed which Mrs. Backman estimated to be 40 miles per hour. This automobile was driven by the defendant Reid. He proceeded south on the shoulder and stopped on it about 500 feet away. Mrs. Backman feared that Gilbert might have been hit and she turned the spotlight along the shoulder but saw nothing of him. She then went on foot toward the Reid car and met Mr. and Mrs. Reid and told them they must have hit a man. The Reids then were on foot also, coming back to reprimand the others for parking on the wrong side of the highway without, they said, having a red light burning on the wrecker. The Reids and Mrs. Backman went back to the Reid automobile and there they found the body of Gilbert caught under the framework of the Reid car. Gilbert was dead. The Reids and Mrs. Backman then went into the motel and telephoned for an ambulance. City police officers, sheriff's deputies, and the county coroner arrived and took over.
Reid's testimony, corroborated by that of his wife, was to the effect that Reid was driving south on the west lane of the highway at a speed of about 35 miles per hour when he came over a crest of the hill approximately 1,000 feet north of the wrecking truck. Reid saw the dazzling bright lights of the wrecker. He thought this was an approaching northbound car and Reid blinked his lights to warn the other car to get over to its proper side of the road. Reid took his foot off the gasoline pedal at this time, which reduced his speed somewhat but because his car was equipped with an overdrive there was little braking effect by the engine. The wrecker's dazzling headlights prevented Reid from seeing whether there was traffic in the east lane. When Reid closed the distance between the cars to about 150 feet and the opposing car did not change its position on the highway Reid turned onto the west shoulder. This was a nine-foot gravel shoulder from which snow had been plowed and it was passable for traffic. When Reid got onto the shoulder he was no longer dazzled by the opposing bright lights and he testified that he could see clearly before him on the shoulder and would have seen any person in his path and there was no such person. When he was two car lengths away from the wrecker he could identify its character. When he passed it, Reid estimates that his speed had fallen off to 10 to 15 miles per hour. The wrecker was wider than the ordinary automobile. Reid scraped the wrecker's fender as he went by and some of the chrome decoration was torn off Reid's car. He felt no shock to indicate that he had struck a heavy object such as a human body. He did not use his brakes but allowed his automobile to coast about 500 feet until it lost its momentum.
The coroner and the various police officers who came to the scene questioned Reid about the accident and Reid frankly stated that he had had six drinks of liquor between the hours of 9:30 p.m., December 31st and 2:30 a.m., January 1st, and after that had nothing to drink. Some of these people smelled liquor on Reid's breath but they all testified that he showed no other signs of being influenced by intoxicants. Reid agreed to take a blood test and he and the coroner went at once to a Beloit hospital, where the test was made. The test showed that there was an alcoholic concentration of .13 of 1 per cent in Reid's blood. The medical expert testified that in his opinion such a concentration would materially affect Reid's ability to see and to manage his automobile.
Trial was to a jury which rendered a special verdict. The material questions, with their answers, were that Reid failed to exercise ordinary care in respect to lookout and in respect to speed, and that each such failure was a cause of the accident.
The jury found causal negligence on the part of Gilbert in lookout for his own safety, position of his and Bohlman's cars on the highway, failure to place flares on the highway, and failure to dim the headlights of his wrecker.
The causal negligence was apportioned 65 per cent to Reid and 35 per cent to Gilbert. On motions after verdict the trial court granted Reid's motion to change the answers to the questions pertaining to Reid's causal negligence from "Yes" to "No," and on the verdict as so changed the trial court entered judgment dismissing plaintiff's complaint.
Additional facts will be stated in the opinion.
The plaintiff submits that there is credible, competent evidence to sustain the jury in each of its answers in the verdict. If there is any such evidence to support any of the answers given by the jury it would be error to change, that answer. Van Galder v. Snyder (1948), 254 Wis. 120, 35 N.W.2d 187.
In the matter of the failure to exercise ordinary care in lookout by Reid there is such sustaining evidence. Although Reid testified that he was not blinded by the wrecker's headlights after he had come onto the west shoulder, 150 feet before reaching the wrecker, Reid did not see the flashing red light on the wrecker. Except Mrs. Reid, the other witnesses who arrived at the scene saw the red light in operation. The jury was entitled to believe these witnesses and to find that Reid did not see what was there to be seen and therefore was negligent in lookout.
There is also evidence to sustain the jury finding that Reid failed to exercise ordinary care in the speed at which he was driving under the circumstances. We need not depend on the weight to be given to Mrs. Backman's estimate that Reid went past her at 40 miles per hour. If we disregard that testimony, as respondents urge us to do, it is undisputed that Reid scraped by the wrecking car, struck a 170-pound man and with no propulsive power except momentum dragged his inert body for 500 feet. Even accepting Reid's own testimony that his speed in passing had been reduced to 10 to 15 miles per hour the jury could conclude that that speed in passing so close to the other cars was, under the circumstances, a negligent speed.
However, the trial court's memorandum decision correctly states that Reid's failure to exercise ordinary care in speed and lookout could not be causes of running into Gilbert unless there is evidence that Gilbert came into Reid's path sufficiently long before the contact for an exercise of ordinary care by Reid in those respects to have made any difference in avoiding the collision. Both Mr. and Mrs. Reid testified that they never saw Gilbert until they found his body under their automobile. Mrs. Backman was the last person to see Gilbert alive. He was then crouching between his automobile and that of Bohlman. He was in a place of safety there and one in which Reid could not see him. There is no evidence to tell when it was that Gilbert moved from there into Reid's path or when Gilbert assumed, if ever, such a posture that a driver could see him over the hood of an approaching car.
The damage to Reid's car was all in the vicinity of the left headlight. A step in distance and an instant of time could take Gilbert from a safe place to the point of collision. To say that he was in Reid's path so long a time that Reid by exercising ordinary care could see and avoid striking him is pure speculation.
Moreover, except by speculation, there can be no comparison of the causal negligence of the parties unless there is evidence of the time and space which separated Gilbert and the car of Reid when Gilbert's visible presence first gave warning to a driver exercising ordinary care that Gilbert was already in or was coming into the driver's path. That evidence is lacking.
By the Court. — Judgment affirmed.
Defendant Reid testified that visibility was reduced because of blowing snow. The jury was entitled to consider this fact, together with the testimony as to the quantity of alcohol in his blood, in determining whether he was negligent as to speed as he approached the scene of the accident. Had he observed the flashing red light on the wrecker vehicle, he would have realized what it was. The jury could reasonably consider that the presence of the stationary wrecker was some notice that extraordinary conditions prevailed, including the possibility that people on foot might be working or moving about it; that ordinary care required an approaching driver to stop, or slow down sufficiently to appraise the situation, before attempting to go around the wrecker, and that Reid's rate of speed and inadequate lookout prevented him from doing so. Had he done so, he would not have struck Gilbert. In my opinion, the evidence supports the jury's answers, and they should not have been changed.
I am authorized to; state that Mr. Justice CURRIE and Mr. Justice DIETERICH join in this dissent.