Summary
leading driver has no duty to give signal by light application of brakes before suddenly decreasing speed
Summary of this case from Haislet v. CrowleyOpinion
October 9, 1957 —
November 5, 1957.
APPEAL from a judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the plaintiffs-appellants there were briefs by Hoffmann, Trembath Gullickson of Wausau, and oral argument by R. C. Trembath.
For the defendants-appellants there was a brief by Genrich, Terwilliger, Wakeen, Piehler Conway, attorneys, and Paul D. Hilton of counsel, all of Wausau, and oral argument by F. W. Genrich.
For the defendants-respondents there was a brief by Smith, Okoneski, Puchner Tinkham of Wausau, and oral argument by Richard P. Tinkham.
On May 4, 1956, Roxann Tesch, appearing by guardian ad litem, and Lucille Tesch, her mother, began action against Wisconsin Public Service Corporation, the owner of a Ford truck, Employers Mutual Liability Insurance Company, its insurer, and Edward Wirtz, driver, Edward Zimmerman and Wayne Wagner, owners of a GMC tractor-trailer unit, and Michigan Mutual Liability Insurance Company, their insurer. The action sought recovery for personal injuries.
Wirtz and the owners and insurers of the GMC unit settled with plaintiffs and received a covenant not to sue. The same defendants made settlement of claims for deaths and injury of other members of the Tesch family and filed a cross complaint against the owner and insurer of the Ford for contribution. After trial to a jury the court directed a verdict in favor of Wisconsin Public Service Corporation and its insurer, and judgment dismissing the complaint and cross complaint was entered December 31, 1956. Plaintiffs and the driver, owners, and insurer of the GMC unit, appealed.
The collision causing the injuries occurred June 11, 1954, during the afternoon, 1 3/4 miles west of Wausau on Highway 29. The highway is straight and is level from a hill 3/10ths; of a mile west of the point of collision to a hill 4/10ths of a mile to the east. The highway had an asphalt surface 20 feet wide and it was marked with a broken center line. Near the point of collision a town road comes from the south, intersects with Highway 29 at right angles, and ends there. Just east of the town road and on the south side of Highway 29 is a tavern with a driveway space in front of it extending out to the highway. The vehicles involved in the matter were an Oldsmobile driven by Ronald Schmidt on the tavern driveway, a Ford truck owned by Wisconsin Public Service Corporation and driven by Daniel Lepak, traveling east on Highway 29, a GMC tractor-trailer unit driven by Wirtz, following the Ford, and a Buick driven by Walter Tesch and occupied by members of his family, including plaintiffs, and traveling west on Highway 29.
There was a collision between the Buick and the GMC unit when Wirtz swung the GMC unit from its eastbound lane into the westbound lane immediately in front of the Tesch Buick. Wirtz claimed that a sudden decrease in speed by Lepak caused him to swing into the wrong lane and Lepak claimed that he applied his brakes at that time because he observed the Schmidt car backing toward the highway in front of Lepak.
Lepak and Wirtz were driving at approximately similar speeds with Wirtz gaining on Lepak on downgrades and falling behind on upgrades. Testimony as to Wirtz's speed varied from 40 to 45 miles per hour and as to Lepak's speed from 38 to 45 miles per hour. They had been traveling in this fashion for 1 1/2 or 2 miles prior to the collision. Lepak had noticed Wirtz on two occasions in his rear-view mirror. A mile and a half west of the collision scene Lepak saw Wirtz coming up behind him and getting as close as 10 to 15 feet. About 1/2 mile west Lepak noticed Wirtz about a block behind. Wirtz testified that as they approached the scene of collision he was catching up with Lepak and that he intended at some time to pass Lepak. He testified that suddenly Lepak reduced his speed to approximately 18 to 20 miles per hour, cutting his speed at least in half; that Wirtz saw Lepak's brake lights go on just as the decrease in speed occurred. At that time the distance between Lepak and Wirtz was 45 feet and both trucks were on the south half of the highway. Wirtz applied his brakes hard as fast as lie could. Notwithstanding the application of his brakes he caught right up to the back of the Lepak truck, still in the south lane. When very close to the back of the Lepak truck, Wirtz swung to the left. The collision with the Tesch car, which was proceeding west in the north lane, occurred almost immediately. The Wirtz truck did not touch the Lepak truck.
Lepak and his passenger, Babicky, testified that the brakes were put on "fairly soft" and Lepak said he reduced his speed to about 30 miles per hour. They also testified that he sounded his horn as he put his brakes on. He did these things because he looked ahead and saw the Schmidt vehicle in the driveway of the tavern and backing toward the highway. Schmidt's car was not backing straight toward the highway but was backing somewhat northeasterly since he had the intention after backing around to drive forward out of the driveway and head west. His car stopped before it reached the pavement although it is not clear whether it came within one foot of the pavement or only within three feet of it.
There was a conflict in testimony as to the distance between Lepak and Schmidt's car when Lepak applied his brakes. There was testimony as to various segments of the distance which would support a finding that Lepak was 444 feet west of the Schmidt car when he applied his brakes. There was other testimony indicating a distance somewhat shorter and the shortest estimate was 275 feet. Lepak testified that he could have stopped his truck in 125 feet. Lepak gave no signal of any intention to slow down except that his brake lights operated when he applied the brake.
Lepak testified that he did not recall seeing the Tesch car; he was watching the Schmidt car creeping out toward the pavement.
After the close of testimony the court stated that it was convinced that there was no proof of any negligence by Lepak; that under the circumstances Lepak's failure to see Tesch's car could not be causal negligence; that Lepak would probably have been negligent if he had not applied his brakes when he saw Schmidt backing toward the highway; that under the decision of this court in Wodill v. Sullivan (1955), 270 Wis. 591, 72 N.W.2d 396, Lepak's brake light was a sufficient signal of any sudden decrease in speed; and that the failure of Lepak to sound his horn could not be negligence with respect to Wirtz.
There was evidence that Lepak did not see Tesch, or at least pay any attention to him, and that he did not blow his horn. We agree with the trial court that neither of those failures could have constituted causal negligence in producing this collision. The horn would have served only as a warning to Schmidt, and Lepak's duties with respect to Wirtz were no greater by reason of the approach of Tesch.
The more important questions, on which we also agree with the trial court, are:
1. Whether Lepak could have been found negligent with respect to lookout to the rear, or management and control and,
2. Whether he could have been found to have suddenly decreased his speed without giving the signal required by law.
Appellants correctly point out that in our consideration of this case they are entitled to the most favorable view of the evidence. They urge that if Lepak was 444 feet from the Schmidt car, he was not yet confronted with an emergency; he had 300 feet more than the 125 feet he required for a complete stop. The jury could have found that Lepak, without danger, had time to glance in his mirror and observe the GMC unit and to give a signal by hand and arm or by light application of his brake for some distance before any sudden decrease in speed or stop became necessary to avoid a collision with Schmidt. Did Lepak have a duty to do these things?
In Thoresen v. Grything (1953), 264 Wis. 487, 59 N.W.2d 682, it was held that a driver had no duty to the driver behind him except to use the road in the usual way, in keeping with the laws of the road, and that until he has been made aware of it, by signal or otherwise, he has a right to assume either that there is no other automobile in close proximity to his rear or that, being there, it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner. In Statz v. Pohl (1954), 266 Wis. 23, 30, 62 N.W.2d 556, 63 N.W.2d 711, it was stated that the rule of the Thoresen Case "requires that we hold that the question as to his lookout should not have been submitted."
Standing by these decisions, we hold that there was no duty on Lepak's part to ascertain whether a vehicle was following him before decreasing his speed. He knew that the GMC unit had been close to him at a previous occasion and he knew that 1/2 mile back he had seen the unit about a block behind him. We are urged to hold that this knowledge by Lepak gave rise to a duty on his part to observe the GMC unit before decreasing his speed, but we conclude that he had no greater duty to find out about the presence or closeness of this unit which he had observed previously than he had with reference to any other vehicle which might have been following him.
Secs. 85.175 (3) and 85.176, Stats., provide:
"No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in sections 85.176 and 85.177 to the driver of any vehicle immediately to the rear when there is opportunity to give such signal." (Sec. 85.175 (3).)
"Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device of a type approved by the department, but when a vehicle is so constructed or loaded that a hand-and-arm signal would not be visible both to the front and rear of such vehicle then said signals must be given by such lamp or lamps or signal device." (Sec. 85.176.)
Appellants contend that Lepak had an opportunity to give a signal substantially in advance of any sudden decrease in speed, and that when the opportunity exists, the statutes so require. That interpretation of a similar statute was made in United States v. First Sec. Bank of Utah (10th Cir. 1953), 208 F.2d 424.
This court has expressed a different view. In Wodill v. Sullivan (1955), 270 Wis. 591, 598, 72 N.W.2d 396., it was said, "When a vehicle is equipped with brake-activated stop lights as required by statute, as soon as pressure is applied to the brakes, a signal automatically occurs indicating the driver's intention to stop or diminish speed. No other signal is required by law." The statement appears to have be unnecessary to the decision, but nevertheless, a deliberate and considered expression of a rule. We adhere to it. Since the Wodill Case, the legislature has revised and recodified the law relating to motor vehicles. Ch. 260, Laws of 1957. Sec. 85.175 (3), Stats., remained in almost identical language and is now sec. 346.34 (2), Stats. 1957. This is some indication that the interpretation of the statute in the Wodill decision was acceptable to the legislature, as well as to the drafters of the code.
Lepak applied his brakes for the purpose of avoiding the danger anticipated from the Schmidt car. Appellants are in effect charging him with an excess of caution in meeting a hazard he foresaw on the road ahead of him. Obviously this is not the case of a driver who suddenly decreases his speed for some reason irrelevant to his use of the highway. Whether such a driver has a duty to look out for vehicles following him and to give a greater warning of his intentions than is required by statute will be a question for decision in a proper case.
By the Court. — Judgment affirmed.