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Schroeder v. Chapman

Supreme Court of Wisconsin
Jun 3, 1958
90 N.W.2d 579 (Wis. 1958)


In Schroeder, failure to post distant warnings that a maintenance vehicle was obstructing the road was considered intermingled with its physical operation.

Summary of this case from Rabe v. Outagamie County


May 5, 1958 —

June 3, 1958.

APPEALS from two judgments of the circuit court for Jefferson county: HARRY S. FOX, Circuit Judge. Affirmed.

For the appellants there was a brief by Rieser, Mathys, McNamara Stafford, and oral argument by Willard Stafford and by Robert W. Smith, all of Madison.

For the respondents there was a brief by Roberts, Boardman, Suhr, Bjork Curry, and oral argument by Walter M. Bjork and by Floyd F. Tefft, all of Madison.

Both actions were brought by plaintiffs Jessie and Harold Schroeder against defendants Jack Chapman, Farmers Mutual Automobile Insurance Company, Jefferson county, and Travelers Indemnity Company. One is for personal injuries sustained by Mrs. Schroeder when her automobile was struck in the rear by that of Jack Chapman, and for the husband's medical expenses and loss of society and services of his wife as the result of her injuries. The other is for the wrongful death of plaintiffs' infant son, Richard. From judgments for the plaintiffs on the special verdict of a jury, the defendants Jefferson county and Travelers Indemnity Company appeal.

The accident occurred on County Trunk C, an east-west black-top road estimated to be 16-17 feet wide with shoulders one-two feet wide in the general vicinity of the accident. The county truck was being used to dump fill on the south side of the road to widen the shoulder. These operations took place 383 feet west of the crest of a hill. On both sides of the highway at the place where the truck was dumping, and for some distance up the hill, there were guard posts within a couple feet of the edge of the black-top. There are ditches on both sides of the road, that on the south side being about five feet deep, where the dumping was being carried on.

The Jefferson county highway department was using two trucks in its operations. Each was painted orange and lettered "Jefferson County;" they were 17 or 18 feet long and had flags on each corner. Immediately prior to the accident one of these trucks had been placed in a position across the roadway; it is undisputed that it blocked the entire road. It was backed to the south, apparently in the process of dumping the fill. The other truck was facing east some distance west of the dumping operation. Three or four loads had been dumped before the accident happened. Each operation completely blocked the highway for about two or three minutes.

Christ Rude, the county employee in charge of this highway operation, testified that when the trucks arrived with their first load between 2 and 2:30 that afternoon he placed a flag on the edge of the black-top at the crest of the hill. It was a red flag about 18 by 20 inches on a steel rod. He placed it on the north side of the highway on a slant so that it hung over the black-top about 10 inches and the top of the rod was three and one-half feet above the surface of the road.

Shortly after 4:30 p. m. Mrs. Schroeder was traveling west on Highway C at about 35 miles per hour. Three of her children were in the car. She saw the flag at the top of the hill and the county truck across the road. When she saw the truck she put on her brakes and disengaged the clutch; the truck was stopped and still unloading when she saw it and she never saw it move forward. She did not know where she was on the hill when the accident happened. She remembered being in the process of stopping but was not sure whether she had actually stopped before the accident.

Within a few seconds after the Schroeder car came over the hill the Chapman car followed at a speed which Chapman testified was 50 to 55 miles per hour. He did not see the flag but when he was at the top of the hill he saw the county truck about 300 feet ahead of him and the Schroeder car about halfway between him and the truck. He braked his car as hard as he could and swerved to the left, but it skidded and struck the rear of the Schroeder car.

In the accident Mrs. Schroeder received her injuries and her four-month-old son, Richard, was killed. Claims on behalf of the Schroeders were filed against the county on February 13, 1956, and the county board took no action on them. These actions were thereafter commenced.

Plaintiffs' cause of action against Jefferson county is brought under sec. 85.095, Stats., which imposes liability on a municipality for damages caused by the negligent operation of its motor vehicles. They contended that the position of the dump truck on the highway constituted negligence as a matter of law under the parking statute, sec. 85.19 (1). The trial court answered in the affirmative the question in the special verdict whether the county was negligent in the operation of its truck with respect to position on the highway. The jury found such negligence causal.

Sub. (b) of question 3 with respect to the negligence of the county inquired whether it was negligent in warning travelers on the highway of the work being done by its employees, and the jury answered this question, as well as the cause question, "Yes."

The jury also found Mrs. Schroeder not negligent with respect to "the position of her car on the highway in relation to the defendant's Jefferson county's truck."

As to Chapman, the jury found him causally negligent as to speed and lookout, not negligent as to management and control. Neither Chapman nor his insurance carrier, Farmers Mutual Automobile Insurance Company, appeal. The judgments, in the total sum of $51,916.42, provide that the liability of Farmers Mutual is limited by its policy to $10,000 for each personal injury, plus the property-damage claim and taxable costs.

Further facts will be stated in the opinion.

It is appellants' first contention that the trial court erred in finding as a matter of law that the county violated the parking statute, sec. 85.19 (1), Stats., with respect to the position of its truck on the highway at and just prior to the accident. (Question 3 (a), answered by the court.) We are not agreed as to whether the trial court was In error in so holding. That may be so.

From a reading of the statute, it will be noted that it prohibits the parking, stopping, or leaving standing any vehicle, whether attended or not, upon any highway, and further "provided that in no event shall any person park, stop, or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of no less than 15 feet upon the roadway of such highway opposite such standing vehicle shall be left for the free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction along such highway." Other sections of the statutes make exceptions in the case of disabled and emergency vehicles. Highway maintenance vehicles actually engaged in maintaining the highway (sec. 85.18 (12), Stats.) are permitted to operate on the left-hand side of the highway when they are designated or at night lighted according to the standard method of marking or lighting such vehicles as promulgated by the motor vehicle department.

It is not necessary to decide this first question, however, since there was no negligence found on the part of the respondent Mrs. Schroeder and any negligence of the appellants is sufficient to sustain the judgment. The evidence respecting the position of the truck, however, has a bearing on the jury's answer to question 3 (b) of the special verdict, wherein it found that the county was negligent in the operation of its truck with respect to "warning travelers on the highway of the work being done by the county highway employees." The efficiency of the warning is to be determined by the hazard created.

The finding of the jury in its answer to question 3 (b) is supported by the evidence. It is undisputed that at and immediately prior to the accident the county's truck was in a position which blocked off the roadway so as to render it impossible for cars going in either direction to pass it. Users of a highway have the right to assume that the highway ahead will not be blocked and that if it is blocked, an efficient warning will be given. The greater the hazard the more efficient the warning should be. Such a blocking as completely prevents a driver from proceeding requires the most-efficient warning. Several methods are effective in such a situation. The road may be closed to traffic; proper signs may be posted; a flagman may be so placed as to control traffic in the blocked area. The evidence shows that these were all means which were available to the county and employed by it when other kinds of highway maintenance work were being done.

Appellants' position is that the only warning requirements applicable to county maintenance vehicles are those contained in sec. 85.06 (19), Stats., requiring that red flags be mounted on each corner of such vehicles while engaged in daylight maintenance work, and that the truck in question was so equipped. Sec. 85.06 (19) provides:

"(a) No tractor, truck, road grader, road drag, or other unit of road machinery used in highway construction or maintenance shall be used upon a highway unless such vehicle or machinery displays during daylight hours a red flag on each side of the front and a red flag on each side of the rear. During hours of darkness a red light visible at a distance of 500 feet shall be displayed on each side of the front and each side of the rear to give adequate warning of the presence of such vehicle or machinery and to show safe clearance for passing or overtaking vehicles. . . ."

Sec. 85.06 (19), Stats., clearly contemplates a situation where the vehicle occupies only such portion of the roadway as will provide clearance for the passage of other vehicles, and the equipment required is for the purpose of showing that clearance. Here there was no clearance; the county truck completely blocked the roadway.

Christ Rude testified that a flag was placed at an angle overhanging the road at the edge of the black-top at the crest of the hill, but the evidence as to its position and visibility is conflicting. Both Chapman and his passenger testified they saw no flag at the top of the hill. Another witness who had passed over the hill about 4:30 that afternoon testified he saw none. Mrs. Schroeder testified the flag was not next to the black-top but off to the side and she could not say whether she saw the flag before she saw the truck. Two other witnesses who passed about 4:30 estimated that the position of the flag was one and one-half feet and from two to three feet off the black-top. One stated it was leaning westward; the other, that it was leaning but not over the black-top. One also testified that he saw the truck before he saw the flag.

Rude, who placed the flag, testified that the same kind of flag is used to indicate washouts. He testified that the county highway department has signs such as "men working," but they are not used for this kind of operation; that the county sometimes employs a man to stand in the middle of the highway with a red flag if the operation takes a long time.

From all the evidence the jury was compelled to conclude that the flag did not constitute adequate warning, considering the great hazard presented by the blocking of the road by the dump truck 380 feet below the crest of the hill. It was entitled to believe the testimony that the flag could not be seen before the truck itself was visible. A flag which does not warn until the obstruction of which it is meant to warn can itself be seen, is no warning at all. This flag gave no warning that the entire road was blocked. Users of the highway had a right to assume that there was room to pass. Sec. 85.19 (1), Stats. Chapman testified that he came over the hill at a speed of 50-55 miles per hour, saw the truck approximately 300 feet ahead and the Schroeder car about half that distance away. Even if he had seen the flag, it would have given him little or no warning that the Schroeder car was stopped on the highway because the road was blocked by the truck. The jury could infer that the flag was sufficient warning for the first automobile but inadequate in a situation where the stopping of the first car would decrease the distance in which a following car could stop. Such a situation could and should have been anticipated by the county. Moreover, there is the evidence that other means of warning, such as the signs or a flagman, were available to the county. Under all these circumstances it could be well argued that the flag, as a matter of law, was inadequate and failed in its purpose, that other means of warning should have been adopted.

Appellants maintain that any negligence as to warning has no relation to the operation of the truck. Sec. 85.095 (2), Stats., under which these actions were brought, imposes liability on a municipality for any damage proximately resulting from the negligent operation of its motor vehicles, "which damage is occasioned by the operation of such motor vehicle in the performance of its business." The blocking of the highway and the giving of a proper warning are necessarily intermingled. The sufficiency of the warning depended on the nature of the hazard of which it was meant to give notice to users of the highway. Appellants cite Raube v. Christenson (1955), 270 Wis. 297, 70 N.W.2d 639, where the plaintiff was injured at an intersection and brought an action against the county on the ground that it was negligent in covering up a stop sign with snow while clearing the streets. The court pointed out that the evidence showed the sign had been covered for a considerable period of time, anywhere from ten days to three weeks. The condition complained of was the result of the operation, not the operation itself, or the failure of the county to timely remove the snow from the sign, and this court held that the use of the vehicles was not the cause of the injuries and there was no liability under sec. 85.095 (p. 304):

"We fail to perceive any reasonable connection between the use of any vehicles which projected the ice and snow to the vicinity of the sign and the injuries sustained by the plaintiff. The use of the vehicles was not reasonably incident to or associated with the collision."

In this case there is not only a reasonable, but a direct connection between the use of the truck and the insufficiency of the warning, and the jury found that the failure to properly warn was a proximate cause of the accident.

Appellants contend that it was error for the trial court to refuse their request for a question with respect to Mrs. Schroeder's lookout, since she testified she had a rear-view mirror but made no observation for following vehicles as she came down the hill. The argument has no merit. The evidence is undisputed that the Chapman car came over the hill "within a second or two" after the Schroeder car and at a speed of 50 to 55 miles per hour. Under those circumstances there was no time for Mrs. Schroeder to do anything to avoid the accident even if she had seen the Chapman car. Her attention was directed to the county truck.

It is further contended by appellants that the trial court should have found Mrs. Schroeder negligent as a matter of law as to position on the highway because she stopped 175 feet from the county truck. The evidence does not show that she was stopped. Christ Rude testified that she was either stopped or proceeding at a very slow rate of speed, he could not say. Mrs. Schroeder testified that her last recollection was that she was in the "process of stopping." It could not be held as a matter of law that Mrs. Schroeder was negligent as to her position on the highway.

Mrs. Schroeder's position is comparable to that of the plaintiff in Reuhl v. Uszler (1949), 255 Wis. 516, 39 N.W.2d 444. In that case a minister stopped his car part way down a hill upon meeting a funeral procession. Shortly thereafter the plaintiff, following the minister's car, stopped in the road behind it. Defendant then came over the hill from behind at a high speed and collided with the plaintiff's car. This court held, first, that the parking statute, sec. 85.19, was never intended to apply to the plaintiff or to persons in a similar situation. It further held that plaintiff operated his car with ordinary care in stopping where he did and that he had the right to rely on sec. 85.40 (2) (b), Stats., and the assumption that other drivers would use ordinary care.

Even assuming that Mrs. Schroeder had stopped her car at a distance of 175 feet from the truck, we cannot say as a matter of law that it was negligence to do so. The truck was stopped or slowly moving when she saw it. She could not know which way it would pull out after it had dumped its load. Her attention was directed to the activity in front of her and she was exercising caution. She was not required to anticipate that Chapman would come from behind at a speed too great to stop.

Appellants complain of prejudice in an instruction to the effect that the parking statute was applicable to county trucks and that the county had the right to close off the highway to travel. In so far as the instruction affected the jury's consideration of causation with respect to the negligence found by the court in question 3 (a), the matter is immaterial. With respect to the jury's consideration of the warning question, the instruction is proper. Appellants concede that the trial court gave their requested instruction that the county had no duty to warn of conditions which in and of themselves give ample warning to travelers. They point out, however, that the court further instructed the jury that the testimony showed the county truck completely blocked the highway and "Under such circumstances it was the duty of Jefferson county to warn travelers of the fact that the highway was blocked," and referred to the blocking as a "hazard." This, they argue, was erroneous and prejudicial in that it deprived them of the benefit of the instruction that where conditions themselves give ample warning there is no duty to warn. We cannot agree. What the instruction amounted to was that the warning would have to be commensurate with the hazard of the condition created. As stated above, this test or criterion was the proper one to apply in considering the sufficiency of the warning given.

Finally, appellants contend that these actions should not have been brought under sec. 85.095, Stats., because the position of the truck constituted an obstruction in the nature of an "insufficiency or want of repair" of the highway, actionable under sec. 81.15. Sec. 85.095 provides that anyone damaged by reason of the negligent operation of a motor vehicle "owned and operated by any municipality. . . . or the members or employees thereof . . . and which damage is occasioned by the operation of such motor vehicle in the performance of its business," may file a claim therefor, etc. We cannot agree with appellants that the truck was not in "operation" within the meaning of sec. 85.095. Christ Rude testified that when he saw the Chapman car come over the hill the county truck had just completed its dumping operation and had started forward. The driver of the truck testified it was "pulling away." However, it is not necessary for a vehicle to be in motion to be in operation. See Merklein v. Indemnity Ins. Co. of North America (1934), 214 Wis. 23, 252 N.W. 280, and cases cited therein. The question involved is not similar to that in State v. Hall (1955), 271 Wis. 450, 73 N.W.2d 585, where the defendant was charged with operation of a motor vehicle while intoxicated. He was found slumped in the passenger seat of his car parked in the middle of a street with the motor running, and the court held the evidence insufficient to show that he had driven the car to where it was found. In that case we did not say that the car was not in operation; we held the defendant was not operating it.

Here the county truck was in the course of performing its business of road maintenance when it blocked the highway. Appellants suggest the real negligence in this case concerns not the operation of the truck but the failure to provide adequate warning, which would not be included under sec. 85.095, Stats. The performance of its business also gave rise to the duty to provide adequate warning and, as pointed out above, was a necessary incident to the operation of the truck.

By the Court. — Judgments affirmed.

WINGERT, J., took no part.

Summaries of

Schroeder v. Chapman

Supreme Court of Wisconsin
Jun 3, 1958
90 N.W.2d 579 (Wis. 1958)

In Schroeder, failure to post distant warnings that a maintenance vehicle was obstructing the road was considered intermingled with its physical operation.

Summary of this case from Rabe v. Outagamie County

In Schroeder v. Chapman (1958), 4 Wis.2d 285, 90 N.W.2d 579, employees of a county failed to put up adequate warnings as they were working on the highway near a hill with a dump truck.

Summary of this case from Hakes v. Paul

In Schroeder v. Chapman (1958), 4 Wis.2d 285, 293, and 294, 90 N.W.2d 579, county employees were operating its truck in such fashion that the highway was blocked.

Summary of this case from Kanios v. Frederick

In Schroeder v. Chapman, 4 Wis.2d 285, 90 N.W.2d 579 (1958), the plaintiff was injured when she was rear ended while stopping for a county truck blocking the road.

Summary of this case from Frostman v. State Farm Mut. Ins. Co.
Case details for

Schroeder v. Chapman

Case Details

Full title:SCHROEDER and another, Plaintiffs and Respondents, vs. CHAPMAN and others…

Court:Supreme Court of Wisconsin

Date published: Jun 3, 1958


90 N.W.2d 579 (Wis. 1958)
90 N.W.2d 579

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