Summary
In Lepak v. Farmers Mut. Automobile Ins. Co. (1952), 262 Wis. 1, 53 N.W.2d 710, plaintiff knew of the operation of the particular truck involved and was guilty of negligence for his own safety in alighting from the vehicle while such operation was taking place.
Summary of this case from Shipley v. KruegerOpinion
May 6, 1952 —
June 3, 1952.
APPEAL from a judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellant there was a brief by Smith, Okoneski, Puchner Tinkham of Wausau, and oral argument by Richard P. Tinkham.
For the respondents there was a brief by Genrich Terwilliger, attorneys, and Emil A. Wakeen, Walter H. Piehler, and Neil M. Conway of counsel, all of Wausau, and oral argument by Herbert Terwilliger.
Plaintiff, Joe Lepak, aged fifty-three years, owned and operated a farm which was located about a quarter of a mile from a pea-viner station of the Owen Canning Company. To supplement his income he occasionally hired out to canning companies as a laborer pitching pea vines. For about three weeks prior to the date of the accident, August 7, 1950, he had been so employed by the canning company. He was familiar with operations usually conducted at pea-viner stations, had seen dump trucks unload peas at the stations many times and was thoroughly familiar with such operations.
On August 7, 1950, one of the canning company's employees called at his home to obtain his help in loading peas onto a truck. At about 7:30 p. m. the truck was loaded and plaintiff asked the driver, the defendant Norbert Skrzypchak, for a ride to the viner station. He occupied a seat in the cab with the driver, and when they reached the station he and the driver visited in the truck for about ten minutes awaiting the departure of another truck. After the other truck left, Skrzypchak drove his truck into a position to unload. The truck was equipped with a hoist and was what is commonly known as a dump truck.
Skrzypchak opened the left door of the cab and turned to his left and rear to observe the platform moving upward. Plaintiff opened the right cab door and started to leave the truck. As his right foot reached the ground and his left foot was either still on the running board or in the air Skrzypchak moved the truck forward suddenly for the purpose of discharging the load of peas. Plaintiff was thrown to the ground and the right rear dual wheels ran over his right foot crushing it.
Skrzypchak testified, and it is not disputed by the plaintiff, that during the entire operation of unloading the truck he was looking to his left rear observing the platform, that when he made a sudden motion to jerk the truck forward he did not have time to make observation to his right or ahead of him, that his attention was directed entirely to his effort to unload the peas. He testified further that he did not hear plaintiff open the cab door and that he did not notice him get out or start to get out of the cab. He admits that he gave no warning to the plaintiff of his intention to move forward as he did.
For the purpose of unloading the peas it was necessary for Skrzypchak to operate the hoist and thereby elevate the front end of the platform. The plaintiff testified that he knew that when the hoist would leave a certain point Skrzypchak would start the truck forward with a jerk so as to release the peas, that he knew before he left the cab that the hoist was up or at least had "started up," that he knew Skrzypchak was going to start the truck forward with a sudden jerk, and that he did not tell Skrzypchak that he was going to leave the truck.
At the close of the testimony the defendants moved for directed verdict, which motion was granted. The plaintiff appeals.
It appears to us that the statement made by the learned trial judge in support of his order directing a verdict clearly and correctly states the reason why plaintiff may not recover in this action. He said:
"The undisputed testimony is to the effect that Lepak had worked on several occasions around pea vineries; although he had not seen this particular truck unload on previous occasions, he had seen dump trucks unload, and he knew that a part of the operation consisted of a jerking movement after the load of peas starts to fall — starts to slide off. And knowing that, and being in the truck, and according to his own testimony having heard the hoist going, and having heard the hoist starting to lift the load, he should have known that the next operation would be a jerking movement, and when the driver of the truck was looking out of his side of the truck, looking toward the load, and not looking toward the plaintiff, Mr. Lepak, the court is of the opinion that Mr. Lepak was guilty of negligence for his own safety in getting out of the truck at that time.
"And under no circumstances does the court feel that there is any evidence that would justify a finding of guilty of negligence on the part of the defendant Skrzypchak."
The trial judge did not say expressly that he made his determination upon the ground that if there was causal negligence plaintiff was equally guilty with the driver but it must be assumed that he had that fact in mind for he said earlier in his opinion that the defendants had grounded their motion, among other things, upon that contention.
Plaintiff cites Williams v. Williams, 210 Wis. 304, 246 N.W. 322, to the point that the question of his negligence was for the jury. The cases are clearly distinguishable. In the Williams Case the plaintiff was struck after she had alighted from her husband's automobile but it did not appear in that case that she knew that her husband would suddenly start his car and race his engine and thereby cause it to skid on the ice and strike her. In the instant case the plaintiff himself testified that he knew what was going to happen and in spite of that fact stepped from the cab of the truck. If he did not assume the risk attendant upon his leaving the truck under the circumstances he was at least causally negligent, and to an extent equal to that of Skrzypchak.
Crombie v. Powers, 200 Wis. 299, 227 N.W. 278, is also cited. As in the Williams Case, the plaintiff who had alighted from the defendant's car was struck by it. It did not appear that plaintiff had any reason to anticipate that the car would be started forward suddenly, as the plaintiff in the instant case did.
Plaintiff had knowledge of the present and notice of the immediately future conduct of the defendant and reason to apprehend that under the circumstances if he left the cab he would subject himself to danger. Under those circumstances he must be held as a matter of law to have been guilty of a degree of causal negligence, at least equal to that of the defendant. Gvora v. Carlson, 255 Wis. 118, 37 N.W.2d 848.
With respect to the alleged negligence of Skrzypchak the plaintiff contends that he should have warned him of his intent to start the truck forward with a sudden jerk. Under the circumstances, if there was negligence on the part of Skrzypchak, it was not causal, for the reason that plaintiff was as fully aware of the danger as if he had been warned by Skrzypchak. Gvora v. Carlson, supra.
Having determined that if the driver was guilty of causal negligence that of the plaintiff was at least equal in degree, we need not determine the question whether the trial court was wrong in its conclusion that there was no proof to support a finding of the driver's causal negligence.
By the Court. — Judgment affirmed.