Opinion
October 15, 1945. —
November 20, 1945.
APPEAL from a judgment of the county court of Shawano county: C. B. DILLETT, Judge. Affirmed.
For the appellant there was a brief by Winter Koehler of Shawano, and oral argument by P. J. Winter.
For the respondents there was a brief by Eberlein Eberlein of Shawano, and oral argument by M. G. Eberlein.
Action for damages commenced April 8, 1944, by A. W. Hoffmann against E. J. Krause, Raymond Krause, and State Farm Mutual Automobile Insurance Company. The case was tried to a court and jury. At the close of the testimony, the court directed a verdict in favor of defendants. Plaintiff appeals.
The plaintiff was driving east on County Trunk Highway M in Shawano county on November 16, 1943, about 8:30 a.m. It was cold and the roads were icy. As plaintiff came over the top of Stubenvoll hill, he saw defendant Krause's truck parked at the foot of the hill on the north side of the road facing west with defendant Krause's Buick touring car parked parallel, also facing west. The truck was eight feet wide and the Buick, six feet wide. The traveled portion of the roadway was twenty-four feet wide, thus leaving between five and six feet of clearance between the south edge of the Buick and the edge of the roadway. Plaintiff testified that it is approximately four hundred feet from the top of the hill to where the truck and the Buick were standing; that he was traveling at a speed of about twenty miles an hour; that when about three hundred feet away he saw the two vehicles and a man standing between them signaling to him; that he applied his brakes and his car skidded and ran into the bank at the side of the road over two hundred fifty feet west of the truck.
The defendant Raymond Krause testified that on the day in question the truck was being used to transport milk to the cheese factory. About three miles from the factory the truck broke down; that he called his father to bring an automobile for the purpose of towing the truck the rest of the way to the factory. E. J. Krause, the father, used a Ford car to tow the truck to the factory. They were unable to pull the truck up the Stubenvoll hill and it was backed down to the foot of the hill. The defendants then started to transfer the milk cans to the Ford car for the purpose of getting them to the factory. The Ford was parked directly behind the truck while the transfer was being made. After the Ford car had made two trips, the Buick touring car in question was substituted. The Buick was parked parallel to the truck in order to make the transfer of the milk more convenient. There is testimony that while the two vehicles were thus parked, another car also traveling east had safely proceeded past the truck and car. There is also testimony by defendant disputing plaintiff's testimony that the distance from the top of the hill to the truck was four hundred feet, and testifying that the distance was six hundred feet, and that the plaintiff's automobile never came nearer than three hundred seventy-eight feet to the unloading operations. There are no maps or diagrams entered in evidence. It is also shown that there was a farm driveway about two hundred sixty feet from the place where the truck and Buick were parked, and that the owner offered to allow defendants to take their truck into his yard.
The trial court held that the statute did not prohibit the Buick car's stopping on the highway in the manner in which it was parked and that there was, therefore, no negligence on the part of defendants, and directed a verdict for defendants.
A directed verdict in favor of defendants was a correct ruling in this case. As a matter of law, no proximate causal connection is shown between the negligence, if any, of the defendants in parking their cars as they did, and the damage to the plaintiff's automobile. The evidence most favorable to plaintiff reveals that the intervening acts of plaintiff in failing to control his car were the sole cause of the accident. His testimony is that he saw the two parked vehicles when approximately three hundred feet away. He then applied his brakes and skidded off the highway. But he, at no time, came closer than two hundred fifty feet to the parked truck or automobile. There was no collision or contact between his car and the truck. While at the top of the hill he was given a warning signal of danger by a man standing near the disabled truck. This afforded plenty of space to stop a car driven at a reasonable rate of speed. It is true that the road was icy but that condition was known to plaintiff and placed upon him a duty to give consideration to that fact and proceed accordingly. It is a well-known physical fact that cars may skid on slippery roads if not properly handled. The skidding results in partial or complete loss of control. The circumstances present may or may not imply negligence, but the result may not be charged to another who gave timely warning and who, as to the question of cause, cannot be required in reasonable anticipation to foresee that another, coming over the hill on an icy surface would drive so as to be unable to stop in three hundred feet. Had plaintiff been able to manage and control his car as he should under the circumstances, he would have been as likely to pass the parked truck in safety as the car preceding him.
The facts in this case are analogous to the situation in Albrecht v. Waterloo Const. Co. (1934) 218 Iowa, 1205, 257 N.W. 183, where a truck stopped on a highway was visible to approaching motorists from both directions for distances of over two hundred fifty feet and was perceived by plaintiff at over two hundred feet. Although the court indicated that there might not be negligence in the manner of parking, it held that in any event, since the truck was seen in plenty of time to stop, the parking was not a proximate cause of the accident. See also Mounts v. Tzugares (1935), 9 Cal.App.2d 327, 49 P.2d 883; Suter's Adm'r v. Kentucky Power Light Co. (1934) 256 Ky. 356, 76 S.W.2d 29; Powers v. S. Sternberg Co. (1938) 213 N.C. 41, 195 S.E. 88; Simon v. Dixie Greyhound Lines (1937), 179 Miss. 568, 176 So. 160.
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.
By the Court. — Judgment affirmed.