ENGSBERG v. HEIN, 265 Wis. 58 (1953)

60 N.W.2d 714

ENGSBERG, Appellant, vs. HEIN and another, Respondents.

Supreme Court of Wisconsin.October 5, 1953 —
November 3, 1953.

Page 59

APPEAL from a judgment of the circuit court for Jefferson county: HARRY S. FOX, Circuit Judge. Affirmed.

Action by plaintiff Raymond Engsberg against defendants, Carroll W. Hein and Farmers Mutual Automobile Insurance Company, for damages arising out of personal injuries and property damage sustained when a milk truck driven by defendant Hein collided with plaintiff’s farm tractor. Defendant Hein interposed a counterclaim in amount of $700 for damage to his truck and loss of milk. Upon the special verdict of a jury attributing 75 per cent of the negligence to plaintiff and 25 per cent to Hein, judgment was entered for defendant Hein on his counterclaim in amount of $457.80 plus costs. From that judgment plaintiff appeals.

The accident happened at about 8:20 a. m., June 23, 1951, a bright, sunny morning, on County Trunk Highway Q, a twenty-foot black-top, which extends in a north-south direction in Jefferson county. Plaintiff Raymond Engsberg, a young farmer residing in that vicinity, was driving a farm tractor north on Highway Q when he met his brother Eugene driving another tractor south on the same road. As they met they stopped their vehicles partly on the shoulders with the motors running, and conversed together. While they were thus parked Eugene saw defendant’s milk truck coming from the south and mentioned it to plaintiff who turned around, saw the truck 1,000 to 1,200 feet away, identified

Page 60

it as a milk truck, and estimated its speed to be between 40 and 50 miles per hour. Eugene then started up his tractor and moved away to the south. Plaintiff turned back, shifted his tractor into gear and started to the north, — “I moved a little bit to the west, to the left, putting all four wheels of the tractor on the black-top and proceeded, proceeding straight north” at about four or four and one-half miles per hour. He had moved approximately 20 feet from his parked position when the defendant’s truck came alongside from behind and collided with the tractor. Plaintiff heard no horn sounded. Hein testified that he could not remember whether he blew his horn or not. No allegation of negligence with respect to defendant’s failure to blow the horn was set forth in the complaint. Before the verdict was submitted, but after counsels’ arguments to the jury, plaintiff’s counsel made oral request upon the record that the complaint be amended to include the allegation of such negligence and that a question on that point be included in the special verdict. The trial court denied the request on the ground it was not timely.

The special verdict submitted to the jury included the following questions:

“Question 1: At the time and place of the accident was the defendant Carroll W. Hein negligent with respect to passing the tractor being driven by Raymond Engsberg at a safe distance to the left?

“Answer: Yes.

“If you answer `Yes’ to question One, then answer this question:

“Question 2: Was such negligence a cause of the accident?

“Answer: Yes.

“Question 3: At the time and place of the accident was the plaintiff, Raymond Engsberg, negligent with respect to deviating from the traffic lane in which he was traveling without first ascertaining that such movement could be made with safety to other vehicles approaching from the rear?

“Answer: Yes.

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“If you answer `Yes’ to question Three, then answer this question:

“Question 4: Was such negligence a cause of the accident?

“Answer: Yes.”

The jury then answered the comparative-negligence question, finding Carroll W. Hein 25 per cent negligent and Raymond Engsberg 75 per cent negligent; and judgment was rendered in defendant’s favor in amount of 75 per cent of his counterclaim.

For the appellant there was a brief by Mistele Smith of Jefferson, and oral argument by Richard C. Smith.

For the respondents there was a brief and oral argument by Francis J. Garity of Jefferson.

MARTIN, J.

Plaintiff’s first contention on the appeal is that the jury’s finding of negligence on the part of the plaintiff with respect to deviating from his lane of traffic at the time of the accident is inconsistent with its finding of negligence on the part of defendant in passing too close to the tractor.

Plaintiff testified that prior to the collision he had started up his tractor from its parked position, angled to the west so that all four wheels traveled on the black-top and that he then continued in a northerly direction. Hein testified that he was traveling entirely in the west lane prior to the accident but that as he was about to pass the tractor plaintiff made a sharp turn into the west lane. The case was tried on the theory that Hein was overtaking and passing the tractor, and it was therefore necessary for the jury to consider the statutory duty of each driver under the circumstances — whether plaintiff violated sec. 85.16 (2), Stats., and whether Hein violated sec. 85.16 (3). From the evidence presented the jury could conclude that the accident was caused by the negligence of both. Plaintiff states in his brief, “. . . there was credible evidence to sustain independent and separate acts of

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negligence by Hein and Engsberg although such verdict would not admit of concurrent findings.” There is no merit to the contention that the findings contradict each other. A jury question was presented as to the negligence of each party and we see no inconsistency in concluding that Hein passed too close to the tractor while the plaintiff deviated.

As the learned trial court stated in its memorandum decision:

“Without any citation of authority, the plaintiff makes the contention that there is an inconsistency in the verdict because there is a finding that the plaintiff deviated, while the defendant failed to pass him at a safe distance. It is difficult to understand plaintiff’s contention in this respect. He seems to argue that it would have been impossible for both parties to be found negligent with respect to a statutory violation. Both questions related to violations of safety statutes. Statutory proscriptions are direct and positive, and not in the alternative, as plaintiff seems to suggest. It would seem elementary that such violations impose obligations which are several and not joint, individual and not contingent or conditional.

“Under the circumstances, there is no reason why the jury could not find that both statutes were violated. In effect, the jury’s finding that the defendant was also negligent was, if anything, favorable to the plaintiff.”

The other question presented is whether the jury could properly decide the negligence questions without being required to find whether Hein failed to blow his horn and, if so, whether such failure was a cause of the accident.

A reading of the record indicates that at the time the verdict was prepared plaintiff’s counsel asked the court not to submit this question. However, after arguments to the jury had been made he requested that it be included and the trial court denied the request on the ground that it was too late. We agree, but, in our view of the case, it is immaterial whether the request was or was not timely made.

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It was plaintiff’s own testimony that his brother called attention to the approaching truck and that he turned and saw it coming some 1,000 feet away and that he observed it long enough to recognize it as a milk truck and estimate its speed at between 40 and 50 miles per hour. A few seconds necessarily intervened while he took leave of his brother, who then went on his way, and moved his own vehicle onto the road. He therefore knew that the truck was coming and that it would pass him, since it was going 40 miles per hour or more when he saw it and the tractor moved at about four miles per hour. Even if Hein had blown his horn, it could not have warned plaintiff of anything he did not already know. Under such circumstances the failure to sound the horn could not have been a cause of the accident, and the question was properly omitted from the verdict.

By the Court. — Judgment affirmed.