Action by plaintiff Darline D. Williams, individually and as administratrix of the estate of Charles F. Williams, deceased, against defendants Monroe county, the Milwaukee Automobile Insurance Company, and Carl Schedler, for the wrongful death of her husband and for damages for bodily injuries and pain and suffering of plaintiff's intestate. After all the testimony was in, the trial court granted the defendants' motion for a directed verdict, and from the judgment dismissing the complaint, plaintiff appeals.

On the afternoon of January 14, 1952, James Whistleman, driving a tractor-trailer in a westerly direction, skidded into a ditch off the north shoulder of U.S. Highway 16 a mile and a half west of Tomah. The highway is a 20-foot concrete highway running in an easterly-westerly direction, and at the point of the accident involved here the road is straight and level. It had been raining, misting, and sleeting all day and the highway, as well as the nine-foot shoulder, was very slippery. The trailer of Whistleman's vehicle was 22 feet long, and the cab about six. It was in the ditch at a slight angle to the road, the left rear corner of the trailer being nine feet from the concrete and the left front corner being about 12 feet from the concrete. The cab portion extended at about a 22 1/2-degree angle toward the left from the front of the trailer.

While Whistleman was attempting to extricate his vehicle Charles Williams, who lived near by, came to help him. Lavern Vitcenda, a passer-by whom Whistleman knew, also stopped to help. The three men worked for about an hour but could not move the vehicle.

Shortly after 5 p. m. a Monroe county sand truck driven by Carl Schedler passed on its way toward the east and Vitcenda hailed it and asked the driver for sand. The truck was then empty, and apparently had no difficulty in stopping. Schedler said he would go to the pit for a load and bring it back. After ten or fifteen minutes Schedler returned, approaching the stalled tractor-trailer from the east. The three men waiting for him were standing at the side of the trailer about nine feet from the concrete, Whistleman near the cab, Vitcenda next to him to the east, and Williams on the east side of Vitcenda.

Whistleman testified that when the truck was about opposite the end of the trailer and partly off the concrete, it started to skid toward the trailer. He shouted and jumped into the cab. Vitcenda escaped being hit by jumping up on, and over, the fender of the sand truck. Williams was caught between the two vehicles when the side of the truck came against the side of the trailer, receiving the injuries from which he died shortly thereafter.

Further facts will be stated in the opinion.

MARTIN, J.

It is necessary to examine the record in the light of the trial court's finding that there was no causal negligence on the part of Carl Schedler; that the deceased was negligent with respect to placing himself in a position of danger; and that deceased's negligence was as great as that of the defendants.

The facts with respect to Williams are these. He was standing in the ditch along the highway nine feet from the concrete, approximately at the outer edge of the shoulder, and about two feet from the stalled trailer. He and the other two men had been shoveling at about that point for more than an hour. As the trial court stated in its memorandum decision, he knew the icy condition of the highway, the weather and conditions as to visibility; he knew the position of the trailer and he must have known that the sand truck was about to return.

With respect to Schedler's operation of the truck, the record shows that the truck was overloaded, its capacity being one and one-half tons and its load at the time of the accident being estimated at as great as six tons. By his own testimony, he drove the truck partly off the concrete; that he knew of the slippery and sloping condition of the shoulder; that he intended to stop at the rear of the cab, to put sand under the wheels, with about four or five feet clearance between the tractor and his truck, but that he gave no warning of that intention to the men whom he saw standing at the side of the trailer; that at the moment he intended to stop he realized the truck was skidding and he then disengaged his clutch and put on his brakes. From this evidence the jury might well have inferred causal negligence on the part of Schedler.

On the facts in this record we cannot conclude that the position of the deceased was an obvious place of danger. It did not become a place of danger until Schedler's operation of his truck made it dangerous. Williams was under no duty to anticipate that the truck driver would, without warning, attempt to come as close as four or five feet on a slippery, sloping shoulder, or that he might not use ordinary care in braking his truck, or that the truck would be greatly overloaded. There is a presumption that the deceased exercised due care for his own safety and we cannot say that the evidence presented in this record overcomes that presumption.

In our opinion the trial court erred in granting the motion for a directed verdict.

By the Court. — Judgment reversed and cause remanded for a new trial.

FRITZ, C. J., dissents.