Opinion
January 5, 1953 —
February 3, 1953.
APPEAL from a judgment of the circuit court for Polk county: CARL H. DALEY, Circuit Judge. Reversed.
For the appellants there were briefs by Doar Knowles of New Richmond, and oral argument by John Doar.
For the respondents there was a brief by Toebaas, Hart, Kraege Jackman of Madison, and Gwin Petersen of Hudson, and oral argument by W. L. Jackman.
An action was commenced by the plaintiff against the defendants to recover damages for personal injuries sustained by him when a car owned and driven by the defendant O'Brien, in which the plaintiff was riding, collided with a truck operated by the defendant Wagner. Upon the trial of the issues the jury found that O'Brien was causally negligent as to lookout and as to management and control of his car. The jury also found that Wagner was causally negligent in parking his truck upon a hill and curve in the highway and in failing to display a red flag at the end of a log that projected more than four feet beyond the rear of the body of the truck. Judgment was entered in favor of the plaintiff and against all of the defendants. All of the defendants appealed. See Schwellenbach v. Wagner, 258 Wis. 526, 46 N.W.2d 852.
The causal negligence of the defendant O'Brien was not challenged upon that appeal. His appeal was solely upon the question of damages. We affirmed the judgment so far as the plaintiff was concerned. We also held that the record sustained the jury's findings that Wagner was negligent in parking his truck at the time and place in question and in failing to display a red flag at the end of the load of logs. He was negligent as a matter of law because of his violation of two statutes, secs. 85.19 (3) (f) and 85.66. Because of error in the trial, which was pointed out in our opinion, a new trial was ordered solely upon the question of whether the negligence of the defendant Wagner was a proximate cause of the collision. If it was, then the defendant O'Brien would be entitled to contribution against him. Wagner moved that the mandate be modified to read as follows:
"Judgment affirmed in favor of the plaintiff and against the defendants, J. E. O'Brien and Iowa Mutual Liability Insurance Company, and cause remanded for new trial between the plaintiff and the defendants Wagner et al. as to proximate cause and between the defendants as to contribution."
Wagner called attention to the fact that, as the opinion and mandate were, the plaintiff could collect the full amount of his judgment against Wagner and his insurance company when their liability had not been fully determined, and that if they were forced to pay the entire judgment they would have to seek contribution against O'Brien and his insurance carrier. The attorneys for O'Brien and his insurance carrier did not appear in opposition to the motion to change the mandate. We eliminated a few words from the mandate as requested in order to make it clear that the plaintiff had fully met his burden, but did change the mandate to read as follows:
"Judgment affirmed in favor of the plaintiff and against the defendants, J. E. O'Brien and Iowa Mutual Liability Insurance Company, and cause remanded for a new trial as to contribution between the defendants."
The record of the new trial indicates that the trial court was not informed as to the reason for the change in the mandate and Wagner's attorneys convinced the court that we meant to order a new trial upon the negligence of Wagner a I s well as whether either of such acts of negligence was a proximate cause of the collision.
The special verdict as returned by the jury read as follows:
"Question 1. At and just prior to the accident was the truck operated by Peter Wagner stopped on the roadway of the highway other than for the purpose of loading or unloading, making necessary repairs, or in obedience to traffic regulations?
"Answer: No.
"Question 2. If you answer question One `Yes,' then answer this question: At and immediately prior to the accident was Peter Wagner negligent in parking his truck upon the highway at the time and place in question?
"Answer: ___________
"Question 3. If you answer question Two `Yes,' then answer this question: Was the negligence of Peter Wagner in parking his truck at the time and place in question, as found by you, a cause of the collision and damage?
"Answer: ___________
"Question 4. At and immediately prior to the accident was the defendant, Peter Wagner, negligent in not having displayed at the end of the load of logs a red flag?
"Answer: (By the Court) Yes.
"Question: Was the negligence of Peter Wagner in not displaying a red flag at the end of this load of logs, a cause of the collision and damage?
"Answer: No.
"Dissenting Jurors: J. M. Hammer, Harold Sampson."
Upon this verdict a judgment was entered on December 14, 1951, providing, among other things, for a dismissal of O'Brien's cross complaint against Wagner for contribution. O'Brien and his insurance carrier appeal.
The question of Wagner's negligence in failing to display the red flag was properly submitted, and that matter has been determined by a jury. Whether or not the negligence of Wagner in parking as he did was a proximate cause of the collision has not been answered. There must be a new trial on this question.
At the new trial the court will answer in the affirmative a question directed to Wagner's negligence in parking. He will then have a jury answer a question as to whether or not that negligence was a proximate cause of the collision.
By the Court. — Judgment reversed and cause remanded for further proceedings in accordance with this opinion.