Opinion
March 3, 1953 —
March 31, 1953.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed.
For the appellant there was a brief by Stephens, Cannon, Bieberstein Cooper of Madison, and oral argument by A. J. Bieberstein.
For the respondent there was a brief by Doar Knowles of New Richmond, and oral argument by Warren P. Knowles III.
Action by plaintiff Lurene E. Eliason, special administratrix of the estate of Kinny H. Nelson, deceased, against defendant Northland Greyhound Bus Lines, Inc., for damages arising out of the death of Kinny H. Nelson which resulted from a collision between the automobile driven by Nelson and a tractor-trailer truck of the Clairmont Transfer Company driven by Clayton Lehman. This case was tried together with other cases arising out of the same accident, and a special verdict was returned by the jury finding Nelson 20 per cent negligent, defendant bus company 70 per cent negligent, and the driver of the truck 10 per cent negligent. From a judgment entered on the verdict, defendant Greyhound Bus Lines appeals.
The accident occurred north of Green Bay on Highways 41 and 141, a concrete highway extending north and south. The pavement is 20 feet wide with gravel shoulders on each side approximately 14 feet in width. Deceased, Kinny Nelson, was driving his automobile in a northerly direction about 11:30 on the night of July 13, 1951. He had stopped at taverns that evening and consumed several glasses of beer. just prior to the accident a Greyhound bus, proceeding north behind the Nelson car, and an hour late in its schedule from Green Bay to Escanaba, attempted to pass Nelson.
There is testimony by the bus driver, Thomas Williams, and some of the passengers on the bus, that Nelson tried to prevent the bus from passing. Nelson was driving about 45 miles per hour when the bus, going between 50 and 55 miles per hour, overtook him. The first time the bus tried to pass Nelson straddled the center line and the bus dropped back into the east lane. Nelson likewise went back into the east lane, and on another attempt the bus pulled alongside the car, which then increased its speed. When the two vehicles were abreast, Williams noticed the lights of the Clairmont truck approaching from the north. For a short time the bus remained in that position, maintaining a speed of about 58 miles per hour (the limit of speed at which it could travel) because Williams thought that Nelson would drop back and allow the bus to pass. Knowing that he could not get back into the east lane behind Nelson before he met the truck, Williams drove the bus onto the west shoulder, completely off the pavement, maintaining his top speed, until he had passed the truck, and then got back on the concrete and proceeded on his way. After he pulled back onto the road he looked in the mirror and saw headlights and some dust behind him. He did not see the accident, and proceeded on to Lena.
Clayton Lehman, driver of the truck, which carried a full load of about 20 tons of freight, saw the bus as it attempted to pass Nelson the first time, and applied his brakes to slacken his speed. There was then a distance of about a half mile between the vehicles. When the bus made its second attempt to pass, occupying the west lane, they were only about 500 feet apart and Lehman put on all his brakes to stop. The bus took the shoulder about 250 feet ahead of him, raising considerable" dust, and Lehman held the truck in the west lane. It was only a matter of seconds until the impact, and the bus was alongside the truck when it collided with the Nelson car. Nelson was instantly killed. Lehman testified that he estimated his speed at about 10 miles per hour at the time the vehicles collided; that the impact drove the front wheels of the truck out of line and it traveled about 20 feet in a curve across the road and into an embankment at the east ditch.
Traffic Officer Pitts, who arrived at the scene shortly after the accident, testified to parallel heavy tire marks beginning in the west lane and continuing in that lane for 32 feet where they crossed the east lane in a southeasterly direction and led to the wheels of the truck. These marks were also observed by Officer Mason. Pitts further testified regarding scratch marks on the pavement from the west lane across the road to the Nelson car. These were also seen by Mason. Neither of the officers noticed any tire marks in the east lane.
Gouge marks were present in the east lane, and Officer Grognet, who arrived at the scene an hour and a half after the accident and took the photographs which were exhibits in the case, testified that he saw tire marks starting east of the center line and extending to the truck. He testified he saw no tire marks in the west lane. All the debris, consisting of sand and dirt, was located on the east side of the highway.
A number of other marks were testified to by the three officers, but the evidence outlined above sets forth in general the physical facts which the jury had to consider.
The jury found Williams, the bus driver, causally negligent with respect to lookout, speed, and management and control. It found Nelson causally negligent with respect to management and control of his automobile as the bus was attempting to pass it, and with respect to lookout. It found him not negligent as to speed or as to his position on the highway at the time of the collision. It found Lehman, the truck driver, causally negligent with respect to reducing the speed of his truck prior to the collision. It then apportioned the negligence 70 per cent to Williams, 20 per cent to Nelson, and 10 per cent to Lehman.
Appellant's main contention is that the collision occurred in the west lane of the highway and that any negligence on the part of the bus driver could not have been a proximate cause of the accident.
We do not agree that the physical facts are conclusive. Considering all such facts, it cannot be said that they are susceptible of only one inference. Clearly, a question for the jury was presented and it was entitled to accept the version of Officer Grognet, which supports the finding that Nelson was not negligent with respect to the position of his automobile on the highway. As the trial court observed, the weight of the evidence may have been contrary to Grognet's version, but his testimony was not incredible and the jury had the right to believe it. Under the well-established rule that where inferences must be drawn from conflicting evidence and there is any credible evidence to support the inference drawn by the jury, the finding must be upheld, it would have been improper for the court in this case to have changed the answer in the special verdict respecting Nelson's negligence as to his position on the highway. Gumm v. Koepke (1938), 227 Wis. 635, 278 N.W. 447; Duss v. Friess (1937), 225 Wis. 406, 273 N.W. 547; Trautmann v. Charles Schefft Sons Co. (1930), 201 Wis. 113, 228 N.W. 741.
Appellant further contends that even if its driver had been negligent in the respects found by the jury, such negligence could not have caused the accident since the negligence of Nelson was an intervening cause. This contention is also based on the argument that Nelson invaded the west lane, which the jury found he did not do. It is true that the bus, traveling north on the west shoulder of the road, did not itself collide with either vehicle involved in the accident and that its path on the shoulder left the entire west lane of the pavement clear for passage of the truck. But, as the trial court stated in its opinion, the negligence of the bus driver which brought him to the west shoulder of the highway, traveling at a high rate of speed and creating a cloud of dust, is directly related to the events that followed. Certainly it cannot be said that the operation of his vehicle by the truck driver would not be affected by the bus approaching head on in his lane of travel at high speed, at nighttime, and then occupying the shoulder to his right, while another vehicle occupied the east lane. Williams' negligent operation of the bus was a link in the continuous chain of circumstances leading to the collision, and the trial court correctly held that an instruction on intervening cause was not proper under the facts of the case.
The question of the truck driver's negligence is not before us, and we make no comment on that point except to say, as the learned trial court said, that we "would be better satisfied with a verdict that exonerated Lehman from negligence and placed more blame upon Nelson."
So far as the apportionment of negligence is concerned, appellant takes the position that Nelson's negligence with respect to managing and controlling his car as the bus attempted to pass was the original wrongful act which put the other causes in operation, and that such negligence was at least equal to that of the bus driver. Nelson's prior conduct, however, should have warned Williams to expect some difficulty in passing the car on the second attempt and to have his vehicle under such control as to enable him to fall back into the east lane should traffic approaching from the north make it impossible for him to pass in safety. Instead, he increased his speed in the west lane and when he noticed the lights ahead took the west shoulder, placing the truck in the precarious position of passing between the two northbound vehicles.
Under these facts, it cannot be said as a matter of law that Nelson's negligence was equal to or greater than that of Williams. Under such circumstances we have repeatedly held that the comparison is for the jury.
By the Court. — Judgment affirmed.