Opinion
January 11, 1961 —
February 7, 1961.
APPEAL from a judgment of the circuit court for Dodge county: HENRY G. GERGEN, JR., Circuit Judge. Affirmed.
For the appellants there was a brief by David P. Hartman of Juneau and John T. Howard of Madison, and oral argument by Mr. Hartman.
For the respondents there was a brief and oral argument by Ken Traeger and Clarence G. Traeger, both of Gresham.
Plaintiff Beverly Nickel brings an action for her personal injuries. Plaintiff Walter Nickel, her husband, brings an action for consequential damages, including damage to his automobile. Plaintiff Integrity Mutual Insurance Company provided collision coverage on Walter's automobile and is subrogated to a part of his claim.
Defendant Karl Voelker is the driver of a dump truck whose manner of driving is alleged to have caused the injuries and damage of which the plaintiffs complain. Defendant Bronkhorst is Voelker's employer and defendant Iowa National Mutual Insurance Company is the liability carrier of Bronkhorst.
There was a separate action by Mrs. Nickel and another by Mr. Nickel and his insurer. The actions were consolidated for trial. The only parties necessary to be referred to hereinafter are Mrs. Nickel and Mr. Voelker.
Mrs. Nickel, driving her husband's automobile containing several children, came over a hill on a roadway covered with gravel. When she came over the hill she saw Voelker's truck across the road ahead of her. He had just come out of a farm driveway. On the trial she was asked whether the truck was stopped or moving and she said it was moving and it was standing still at the time. She first realized that the truck was not moving when she was over the crest of the hill. The distance from the crest to the driveway is 570 feet.
Voelker came out into the highway from the private drive at a speed of three or four miles per hour and reached a point where his truck occupied portions of both traffic lanes. The highway is 22 feet wide. He was moving forward when he saw Mrs. Nickel coming, so he stopped and then backed up.
Mrs. Nickel realized, she said, that she would not be able to stop before she struck the truck if she continued on her course so she put her brakes on hard and turned into the left ditch some 138 feet before reaching the truck and continued in the ditch until she had passed in front of the truck. Then she hit a large stone which bounced her back into the highway and ultimately she came to a stop. She did not collide with the truck. A traffic officer estimated that there was a clear space of nine and one-half feet for her passage ahead of the truck. She suffered some injuries in her trip along the ditch.
The jury found by special verdict that Voelker was causally negligent in stopping on the roadway and in lookout, but not in management and control. It found Mrs. Nickel causally negligent in speed and management and control. The causal negligence was apportioned 40 per cent to the plaintiff and 60 per cent to the defendant and judgment was entered on the verdict.
It is obvious that the evidence sustains the findings that the respective drivers were negligent in the respects found by the jury. The appeal rests on the contention that Voelker's negligence was not a cause of the accident and, if that contention fails, Voelker's causal negligence did not exceed that of Mrs. Nickel. Appellants consider that this case is substantially similar to Hoffmann v. Krause (1945), 247 Wis. 565, 20 N.W.2d 546, where Hoffmann, driving on an icy road and being confronted by two cars across his path 300 feet away, one of them disabled, put on his brakes, skidded off the road and into the bank where he sustained damage. In affirming the directed verdict we said (p. 569):
"Under the circumstances, the parking of the defendants' vehicles was too remote to be a cause of the plaintiff's skidding upon which to predicate any liability on the part of the defendants."
While the Krause Case has similarities with the present one, as appellants submit, it also has divergencies which do not require a like result as a matter of law. In Krause the plaintiff saw the disabled car 300 feet away and saw a man at the car signaling to him. The Krause car was an obstruction and the presence of the signalman indicated that it would remain so. In the present case when Voelker came into sight of the Nickel car he was moving across the road. Instead of maintaining his course, Voelker first stopped and then backed up and then stopped again. Here the obstruction did not remain stationary. Unquestionably Mrs. Nickel was negligent and causally so, but Voelker's truck presented a situation quite different from that which obtained in the Krause accident. We consider that Voelker's vacillation, culminating in stopping across the roadway, supplies evidence upon which the jury might properly determine that stopping as he did was a cause of the accident.
Under these circumstances we think that the apportionment of causal negligence was for the determination of the jury. The jury appears to have considered the question carefully and placed a substantial part of it upon Mrs. Nickel. We are not disposed to say that her negligence equals or exceeds that of the driver of the dump truck.
By the Court. — Judgment affirmed.