Fitzpatrick v. Rice

77 N.W.2d 515, 273 Wis. 201, 1956 Wisc. LEXIS 317

• Court: Wisconsin Supreme Court
• Decided: June 5, 1956
• Status: Published

Opinions

Martin, J.

In its decision on motions after verdict the trial court stated:

“The court has referred to the problem created by defendant’s after-verdiet motion as a simple one, when in fact it is one of the most troublesome that has been presented to the court for some time. The difficulty arises in determining whether there is any reasonable inference, from the evidence introduced, to sustain the jury verdict or whether such verdict is based on conjecture and speculation.

“The failure of Gilbertson to testify leaves a clear absence of any evidence which connects his conduct with defendant’s defaults or failures. The burden was on the plaintiff, of course, to establish, by evidence or inferences therefrom, that such a relationship existed. The picture is presented then of a truck illegally parked, without rear reflectors as required, and a collision with an oncoming car from the rear. We can speculate that defendant’s neglect somehow or other contributed to produce the collision, but therein lies the evil. I do not believe there is anything in the record by way of evidence, to which inferences could attach, to support the jury’s answer to the cause question. . . .

“It seems to the court that there is a complete hiatus between the proof offered by the plaintiff and the answer of the jury finding defendant’s negligence to be causal. The court concludes that it must set aside the answer of the jury finding defendant’s negligent acts to be causal, for the reason that the record is barren of any proof, or reasonable inferences from any proof, that such neglect on the part of the defendant in any way operated as a substantial factor in bringing the end result .of the collision between the standing truck and the oncoming Gilbertson car.”

Appellant asserts that the trial court’s conclusion is contrary to the established law in this state.

Since it is not disputed that the point of impact was about three feet toward the center of the Gilbertson car, there could be no causal connection between the accident and the position of the truck. Gilbertson would have collided with it even if it had been parked within twelve inches of the curb.

As to the absence of reflectors, appellant calls attention to Walker v. Kroger Grocery & Baking Co. (1934), 214 Wis. 519, 252 N. W. 721. There, in view of the speed of the plaintiff car and conditions of fog, this court held that a jury finding of proximate cause in the absence of a reflective signal on the rear of a stopped truck could not stand. From this appellant reasons that there being here “no evidence of speed on the part of Gilbertson nor of negligence with respect to lookout,” the jury “might well infer that had there been reflectors on the Rice truck Gilbertson would have seen it and turned to the left in time to avoid the collision.”

To make a finding of proximate cause there must be evidence upon which to reasonably conclude that Rice’s negligence affected Gilbertson’s conduct. What was Gilbertson’s conduct? We do not know, except that he ran into the truck. It may be presumed that the ordinarily prudent driver will not deliberately run into a vehicle he sees in his path. But there is no evidence that Gilbertson was an ordinarily prudent driver; there is no evidence that he was maintaining a lookout; there is no evidence as to when he saw the truck, if he saw it at all.

We do not disagree with any of the cases cited by appellant, but this case differs from all of them in that there is a “clear absence of any evidence” which connects Gilbertson’s conduct with Rice’s negligence. What appellant asks us to do is substitute for such evidence a presumption of due care as to Gilbertson’s lookout simply because there is no evidence of his negligence in that respect. This we cannot do. Gilbert-son’s failure to testify is not explained by any showing that he was deceased, incompetent, or unavailable, and entitles appellant to no presumption.

If it had been shown that prior to the collision Gilbertson’s attention was properly directed to the scene before him, the inference could be drawn that he would have seen reflectors on the truck had they been there and managed to avoid the collision. On the state of the record before us, however, to “infer” that reflectors would have been seen by him in time to avoid the collision would be to employ pure speculation. We could as easily speculate that he was turning around and visiting with his passengers before the accident, in which case he would not have seen the truck if reflectors were there. The record does not show whether or not he had headlights on or, if he did, whether they enabled him to see the distance that the statutes require. Reflectors are of no effect unless light is shone upon them.

Appellant maintains that Felix v. Soderberg (1932), 207 Wis. 76, 240 N. W. 836, controls this case. The rule of that case and other cases cited is to the effect that an illegally stopped vehicle may, under some circumstances, be held to contribute to a collision with a vehicle which strikes it. In the Soderberg Case there was evidence as to the driver’s lookout, his speed, and other specific circumstances concerning the accident. In this case we do not reach the point of considering the rule because of the complete lack of evidence as to Gilbertson’s acts.

By the Court. — Judgment affirmed.