Opinion
January 11, 1956 —
February 7, 1956.
APPEAL from a judgment of the circuit court for Pierce county: KENNETH S. WHITE, Circuit Judge. Reversed.
For the appellant there were briefs by William E. McEwen of River Falls, attorney, and Doar Knowles of New Richmond of counsel, and oral argument by Mr. John Doar and Mr. McEwen.
For the respondents there was a brief by Frank L. Morrow of Eau Claire, and Davison White of River Falls, and oral argument by Mr. Morrow.
Action in negligence for damages for personal injuries. The plaintiff, Ferdinand Polsfuss, complained that he was injured as a result of negligence on the part of the defendant, Stanley H. Price, when the latter suddenly backed his automobile with a jerk after it had been stopped, and while the plaintiff was alighting therefrom on a driveway leading from State Trunk Highway 29 to Florian's Inn, a restaurant, near River Falls, on March 18, 1951. At the trial, which was commenced on November 15, 1954, a special verdict submitted by the court to the jury resulted in the following determination:
"Special Verdict
"Question 1. Did the defendant Stanley H. Price, after coming to a stop in the vicinity of Florian's Inn on March 18, 1951, back his Pontiac automobile?
"Answer: Yes.
"Question 2. If you have answered question 1 `Yes' then answer the following question:
"At or immediately prior to the time of the accident in question, did the defendant Stanley H. Price fail to exercise ordinary care not to increase the danger assumed by the plaintiff Ferdinand Polsfuss when he entered his automobile with respect to backing the same?
"Answer: No.
"Question 3. If you have answered question 2 `Yes,' then answer the following question:
"Was such failure to exercise ordinary care on the part of Stanley H. Price a cause of the accident and injury to Ferdinand Polsfuss?
"Answer:
"Question 4. Under the circumstances then existing, did the plaintiff Ferdinand Polsfuss fail to exercise ordinary care for his own safety when he got out of the Price automobile?
"Answer: Yes.
"Dissenters: John Harrington, Lowell Ingli.
"Question 5. If you have answered question 4 `Yes,' then answer the following question:
"Was such failure to exercise ordinary care for his own safety on the part of Ferdinand Polsfuss a cause of the accident and resulting injuries to him?
"Answer: Yes.
"Question 6. If you have answered question 3 `Yes,' and have also answered question 5 `Yes,' then answer the following question:
"Taking the number 100 as the total want of ordinary care which caused the accident, what percentage thereof, if any, do you attribute to each of the following:
"(a) Stanley H. Price?
"Answer:
"(b) Ferdinand Polsfuss?
"Answer:
"Question 7. What sum of money would fairly and reasonably compensate the plaintiff, Ferdinand Polsfuss, for pain and suffering, physical disability, and pecuniary damages, if any, as a result of the accident in question?
"Answer: $1,500."
At 3 p. m. on November 17, 1954, the jury reported its special verdict to the court. After examining the same the court said to the jury: "There is a seeming inconsistency in your verdict. You have failed to answer question 3 and you have answered question 6, and you are not required to answer question 6 unless you have answered question 3 `Yes.' I will ask you to return to your jury room with the verdict and either answer question 3 in accordance with the instructions, or strike out your answer to question 6." The jury returned to the jury room for further deliberations and at 3:15 p. m. of the same day returned into court with its special verdict as indicated above. The plaintiff moved to set aside the verdict and for a new trial upon the following grounds:
"(a) Because of error in the form of the questions of the special verdict.
"(b) Because of error in refusing to submit a question as to management and control and a question as to lookout as requested by plaintiff.
"(c) Because there is no evidence to support the answer to question 2.
"(d) Because the answer to question 2 is contrary to the overwhelming weight of the evidence.
"(e) Because of error in the court's instructions to the jury.
"(f) Because of error in refusing instructions requested by plaintiff.
"(g) Because the verdict is contrary to law.
"(h) Because the damages are inadequate indicating prejudice of the jury.
"(i) Because justice has not been done."
The court denied the motions after verdict and entered judgment dismissing the complaint. It is from this judgment that the appeal was taken by the plaintiff. Other facts are stated in the opinion.
On March 17, 1951, at about 10:30 p. m., the plaintiff, Ferdinand Polsfuss, went to the Green Lantern tavern in River Falls, which was operated by the defendant, Stanley H. Price, and there visited with some of the other patrons until the tavern closed at midnight. Rosanne Polsfuss, wife of the plaintiff, was working at the tavern as a waitress at the time. Those with whom Polsfuss visited were: Robert C. Braim and Lorraine Braim, his wife, and Mrs. Mary Jasperson, all of Minneapolis and friends of his wife, and also George Engel and Eleanor Engel, his wife. While at the tavern Polsfuss had "two or three whiskeys and Seven-Ups." The defendant Stanley H. Price and his wife, Bernetta, were also at the tavern during the time that Polsfuss was there. At closing time the parties mentioned above decided to go to Florian's Inn, a restaurant at the edge of River Falls, to eat. There were two cars in the party, one driven by Stanley H. Price and the other by Robert C. Braim. The Price car was a 1949 four-door Pontiac sedan. It preceded the Braim car en route from the Green Lantern tavern to Florian's Inn. In the front seat of the Price car, Mrs. Price sat next to her husband, the driver, and Mrs. Polsfuss sat to the right of Mrs. Price. In the rear seat Mrs. Engel sat behind Price, Mr. Engel sat behind Mrs. Price, and the plaintiff Ferdinand Polsfuss sat behind his wife. Braim drove his own car and Mrs. Braim and Mrs. Jasperson were the other occupants of it. A severe snowstorm was in progress and there was about seven inches of freshly fallen snow on the ground. Notwithstanding the storm, the road conditions were not bad. The windows of the Price car were covered with snow or frost, but the windshield wipers worked efficiently and the driver's visibility ahead was satisfactory. Polsfuss testified at the trial that Price encountered no difficulty in driving out toward the restaurant and that he drove his car properly up to the time that he came to the stop in question. Price had not indulged in any alcoholic beverages on that night.
Highway 29 in the immediate vicinity of Florian's Inn extends in a north and south direction. When approaching the driveway at Florian's Inn, Price was proceeding in a southerly direction on the highway. The driveway runs in an easterly direction from the highway to the inn. For the reason that an automobile was stopped in the driveway and appeared to be stuck, Price stopped his car. Price and his wife testified that he stopped while facing south on the west half of the highway before turning left into the driveway, and that he did not stop when once on the driveway until he came to the inn. All of the other occupants of the Price and the Braim cars testified that Price stopped his car on the driveway after making the turn. The main doorway of the inn is 50 or 60 feet from the highway. The highway is 66 feet wide. Polsfuss maintains that when the Price car stopped, Price remarked that he wondered as to what was the matter with the car ahead that was stopped in the driveway. Polsfuss testified that he (Polsfuss) then said: "He is stuck. Just a minute. I will get out and give him a hand," and that Polsfuss immediately opened the right rear door and stepped out, and that while doing so, and without any warning, the car backed up about two or three feet with a jerk. The door struck his chest and knocked him down. He was wearing a storm coat, and an edge of the door hooked into his storm coat. His ankle was injured resulting in partial stiffness. Price drove on toward the restaurant building and parked.
At the trial, Price and his wife testified that Price did not back the car. The other occupants of the cars testified that Price's car had backed up. The jury found that Price had backed the car. Price and his wife also testified that they were not aware of the fact that Polsfuss left the car. Polsfuss and his wife and Mrs. Engel testified that Polsfuss got out of the car.
The appellant contends inter alia that the court erred in failing to incorporate in the special verdict an inquiry with reference to the driver's negligence as to lookout; and also in failing to instruct the jury with respect to the driver's duty as to lookout immediately before and while backing the car.
The driver of an automobile must exercise ordinary care in backing his machine so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured. 3-4 Huddy, Cyc. Automobile Law (9th ed.), pp. 219, 220, sec. 133. See also 2 Berry, Automobiles (7th ed.), pp. 326, 327, sec. 2.326.
The duty of due care in backing requires the maintenance of an adequate lookout either independently of or additionally or alternatively to signaling, entailing in many situations the adoption of sufficient means to ascertain whether others are in the vicinity who may be injured. Ordinarily, this duty of looking backward is to be performed by the motorist not only before he begins the operation of backing, but also while he is in the act of backing. 2 Blashfield, Cyc. Automobile Law and Practice (perm. ed.), pp. 419, 420, sec. 1102.
The backing of any vehicle entails more or less limitation of view by the driver of the area to be traversed, and thus requires corresponding vigilance on his part to avoid causing injury to persons who are known to be, or likely to be, there, whether the vehicle is backed on a public street or on private land. Minsk v. Pitaro (1933), 284 Mass. 109, 187 N.E. 224. See also Lacaria v. Hetzel (1953), 373 Pa. 309, 96 A.2d 132.
In Patterson v. Edgerton Sand Gravel Co. (1938), 227 Wis. 11, 18, 277 N.W. 636, this court said:
"But furthermore, in so far as the private character of the premises was involved herein, the jury was rightly and sufficiently instructed that `the questions of negligence as applied to Wescott, the driver, are not covered by the law of the road or the rules applying to a public highway; but his actions are to be tested according to the ordinary standards of prudence and care which persons ordinarily exercise when driving a truck or anything of the kind upon private grounds.' That instruction was applicable and ample in respect to the questions submitted to the jury as to negligence on the part of Wescott in failing to keep a proper lookout, and in failing to give a proper signal of his intention to back the truck."
In Brunette v. Bierke (1955), 271 Wis. 190, 198, 72 N.W.2d 702, it was said:
"It may be conceded that backing from private property demands a high degree of skill and caution as plaintiff contends. The trial court apparently was of that view, for the jury were instructed that ordinary care on the part of the backing operator requires a vigilant lookout to the rear."
In the case at bar the respondent driver insists that he was unaware of the attempt of the guest to alight. He also maintains that his car did not back up, The jury, however, by its verdict determined that he had backed the car, and all of the witnesses who testified as to the car's backing stated that it did so with a jerk.
Counsel for Polsfuss had requested the inclusion of a question in the special verdict inquiring as to the negligence of Price "both as to backing the automobile and as to lookout." The court declined to submit an inquiry with respect to lookout. An instruction with reference to lookout was also requested. The jury, however, was not instructed as to lookout. We are of the opinion that in circumstances as here, appropriate questions ought to have been included in the special verdict relating to negligence of the defendant with respect to lookout as well as to backing. Since the jury had determined that Price had backed the car, Polsfuss, under his pleadings and the evidence, was entitled to a finding as to whether or not Price was negligent with respect to having made a proper observation before the backing operation commenced and while the car was being backed. The failure of the court to have submitted a proper inquiry as to lookout constituted reversible error. The appellant is entitled to a new trial. Since a new trial must be had, we deem it unnecessary to determine other assignments of error raised upon the appeal.
By the Court. — Judgment reversed, and cause remanded for a new trial consistent with the opinion herein.