Opinion
November 10, 1954 —
December 7, 1954.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Affirmed.
For the appellant there were briefs and oral argument by Samuel Goldenberg of Milwaukee.
For the respondents there were briefs by Moore Prentice and Raymond J. Moore, all of Milwaukee, and oral argument by Raymond J. Moore.
This is an action commenced on March 31, 1951, by Bryant Weber, a minor, by his guardian ad litem, Arthur L. Weber, against Margaret Walters, Iowa National Insurance Company, a corporation, Chester L. Fletcher, Flanagan Brothers, Inc., a corporation, his employer, and Employers Mutual Liability Insurance Company, a corporation, the latter's insurance carrier, for damages on account of an automobile collision which occurred on November 8, 1950, at the intersection of Highway 100 and West Good Hope road in Milwaukee county.
Highway 100, an arterial highway, runs in a general north and south direction and intersects West Good Hope road which runs in an east and west direction. There were no obstructions to view at the intersection.
Margaret Walters on the day in question at about 3 p.m., was driving east on West Good Hope road. She had with her the plaintiff and three other children. She stopped her car at the intersection to discharge three of the children and waited to observe them cross West Good Hope road. There is testimony that she stopped her car five or 10 feet west of a stop sign which stood at the southwest corner of the intersection and 25 feet west of the west edge of the concrete pavement on Highway 100. Before she proceeded into the intersection she looked to the south and saw a truck driven by the defendant Fletcher approaching. When she first saw it, it was at the crest of a hill about a quarter mile from the intersection. Before she proceeded forward she also observed two trucks approaching from the east and turn south on Highway 100. After the trucks had completed the turn she entered the intersection. She testified that she looked to the south again, did not see the Fletcher truck, and proceeded to cross in her right lane. While in the intersection her automobile was struck by the Fletcher truck. She had traveled easterly about 25 feet from her parked position to the west edge of the concrete on Highway 100 and then another 25 feet easterly on the concrete when the collision occurred.
Fletcher testified that when he was 900 to 1,000 feet south of the intersection he was traveling at the rate of about 40 to 45 miles per hour and at that time first saw the Walters automobile standing at the stop sign. When he saw the children being discharged from the automobile he was about 500 feet from the intersection and traveling at a speed of from 30 to 35 miles per hour. As he approached the intersection he was traveling upgrade and therefore, after having first decelerated because of the presence of the children, he increased his speed to 40 or 45 miles per hour. His truck struck the automobile on its right side and traveled about 35 to 40 feet from the point of impact.
He testified that he observed the Walters car until the time of the impact; he was about 90 to 100 feet south of the south edge of West Good Hope road when the Walters car started up from its stopped position; he then started to apply his brakes; it appeared to him that the car was to be driven straight ahead and continue easterly on West Good Hope road. After the car was started it was driven quite slowly; as soon as possible he applied his brakes and saw the car start forward; the reason why he applied his brakes was to slow up, "so in case the car did proceed through the intersection I would have my truck under control." He was from 45 to 50 feet from the Walters car when he "got his brakes applied;" he did not swerve his truck prior to the impact but applied his brakes and turned to the right; he did not know how far he was from the Walters car when he turned to the right, it might have been as close as 10 feet.
It appears from the testimony that the average speed of the Walters car as it crossed the intersection was about seven miles per hour and that that of the Fletcher truck was about 40 to 45 miles per hour.
The issues were submitted to a jury in the form of a special verdict. Defendant Walters was found guilty of causal negligence with respect to lookout and yielding the right of way. No attack is made upon these findings. Fletcher was absolved of negligence as to speed and lookout and found guilty as to management and control. However, the jury found that his failure was not causal. The usual motions after verdict were made. Among other things plaintiff asked that the court change the jury's answer to the question which inquired as to the causal relationship between Fletcher's negligence as to control and the collision. The court refused to disturb the verdict in any respect and on May 29, 1954, entered judgment in favor of plaintiff against defendant Walters and her insurer, and dismissing the complaint against the defendants Fletcher, his employer, and their insurance carrier. Plaintiff appeals.
The jury's finding that Fletcher was negligent with respect to the manner in which he controlled his truck is not attacked. Plaintiff contends that the court should have found as a matter of law that such negligence was a proximate cause of the collision. That is the sole question presented upon this appeal.
"The rule of law is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is for the jury should be firmly adhered to and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned. Wisconsin Telephone Co. v. Russell (1943), 242 Wis. 247, 252, 7 N.W.2d 825, and cases there cited." Czerniakowski v. National Ice Coal Co. 252 Wis. 112, 115, 31 N.W.2d 156.
The fact that the testimony is uncontradicted does not of itself require that the court determine as a matter of law that an act found to have been negligently performed is a substantial factor in bringing about harm to another. Facts reasonably inferable from the evidence may be considered.
"Where undisputed facts permit of different inferences a question of fact and not of law is presented." Eckhardt v. Industrial Comm. 242 Wis. 325, 329, 7 N.W.2d 841.
There is practically no dispute in the testimony as to Fletcher's conduct. The jury no doubt considered that his failure to apply his brakes earlier or more effectively, or his omission to steer his car so as to avoid a collision constituted negligence as to control.
"Whether by reason of negligence on his part in either or both of those respects, he failed to keep the [truck] under proper control and thus contributed in causing the collision was a question for the jury." Webster v. Krembs, 230 Wis. 252, 258, 282 N.W. 564.
"What is proximate cause is ordinarily a question for the jury if the evidence is conflicting or if different inferences can be drawn from it. Schultz v. Brogan, 251 Wis. 390, 29 N.W.2d 719, and `if the evidence is conflicting or, although not contradictory, is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury.' Sec. 434, comment c, Restatement, 2 Torts, p. 1172, quoted with approval in Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 233, 55 N.W.2d 29." Roeske v. Schmitt, 266 Wis. 557, 568, 64 N.W.2d 394.
We are of the opinion that the court properly held that the question of the causal relationship between the negligence found and the collision was for the jury.
By the Court. — Judgment affirmed.
STEINLE, J., took no part.
I must respectfully dissent. The jury found Fletcher negligent as to management and control, but that such negligence was not causal. I consider such negligence necessarily must be held to have been a substantial factor in causing the accident as a matter of law, and therefore constituted a proximate cause thereof.
Negligence in the management and control of a motor vehicle on the part of the operator thereof does not arise until such operator has by his lookout perceived something of potential danger that requires him to take some affirmative action on his part to avoid such danger. Reynolds v. Madison Bus Co. (1947), 250 Wis. 294, 306, 26 N.W.2d 653. If the threat of potential danger is the invading of his intended path of travel by another vehicle, as in the instant case, and he fails to see anything which indicates this is about to happen until it is too late for him to apply his brakes or swerve his vehicle to be effective in avoiding a collision, he cannot be held guilty of negligence as to management and control even though he thereafter does nothing. This is true regardless of whether or not he may have been negligent as to lookout.
In the case at bar Fletcher's own testimony was that he did not see the Walters car enter the intersection until he was so close that he then could do nothing by way of application of brakes or swerving his truck which would have been effective to have avoided the accident. On the other hand, the distance that the Walters car traveled after Fletcher first saw it together with the slow speed at which it was traveling gave rise to the reasonable inference that Fletcher must have been considerably farther south of the intersection at the time when he saw the Walters car start to enter it than he had stated in his testimony, and, therefore, that he did have sufficient time to have applied his brakes or swerved his truck and avoided the accident. Thus a jury issue was presented as to whether Fletcher was negligent with respect to management and control.
However, when the jury found that he was negligent in this respect the jury necessarily must have determined that Fletcher did have sufficient time to have effectively applied his brakes or swerved his truck to have avoided the resulting collision after he first saw the Walters automobile entering the intersection. It, therefore, follows as a matter of law that such negligence must have been a substantial factor in causing the accident because it would not have happened but for Fletcher's failure to take such effective action to avoid it. Restatement, 2 Torts, p. 1159, sec. 431, states:
"The actor's negligent conduct is a legal cause of harm to another if
"(a) his conduct is a substantial factor in bringing about the harm, and
"(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm."
Therefore, the learned trial court on motions after verdict should have changed the jury's answer from "No" to "Yes" in the causation question which was coupled with the question relating to Fletcher's negligence as to management and control; and, upon the verdict as so changed, judgment should have been rendered against Fletcher and his insurance carrier as well as against the defendant Walters and her insurance carrier.