Action commenced by plaintiff Mary Lou Fitzpatrick against defendants Howard Rice, his insurance carrier, London Guarantee Accident Company, Ltd., a foreign corporation, and Clyde Gilbertson, for recovery of damages for personal injuries sustained by plaintiff while riding as a guest in the automobile of Gilbertson when it collided with a truck owned by defendant Rice parked on Wisconsin avenue in Appleton, Wisconsin. The trial court answered questions in the special verdict finding Gilbertson causally negligent as to management and control, and the jury found Rice causally negligent in failing to park his truck within 12 inches of the curb and failing to have the truck equipped with red reflectors on the rear thereof. Upon motions after verdict the trial court changed the answers of the jury on causation as to the negligence of Rice; and from a judgment dismissing plaintiff's complaint as to the defendants Rice and his insurer, plaintiff appeals.
At about 9 p.m. on March 14, 1953, plaintiff was riding in the rear seat of the Gilbertson automobile. There were four other persons in the car, including Gilbertson, who was driving. Gilbertson had stopped at the intersection of Summit street and Wisconsin avenue, then turned east on Wisconsin avenue. There was testimony that it was raining and the street was very dark. Shortly after making the turn and while proceeding east on Wisconsin avenue, the Gilbertson automobile struck the rear of the truck which Rice had parked on the south side of the street facing east.
It is undisputed that the width of the truck was such as would require it to be equipped with red reflectors on the rear, as provided by sec. 85.06(25), Stats. It was parked about two feet from the curb. A written statement signed by Rice was incorporated into the record as plaintiff's Exhibit 2, in which it was stated:
"It was raining and I parked about two feet north of the south curb because of snow near the curb. In all my truck did not extend over 10 feet from the south curb. I did not have lights on at the time nor was my truck equipped with reflectors."
Jerome Kavaney, a police officer, testified:
"I think the car struck almost on the centerpost of the windshield. In that area it struck the truck. The part of the car where a person would normally sit, opposite the driver, that was the part that struck the rear of the truck."
Plaintiff testified that she did not see the truck before it was struck; that she was sitting in the rear seat directly behind the driver and when the impact occurred she bumped her head on the back of the front seat and received injuries to her mouth.
Neither Gilbertson nor Rice testified on the trial; nor did any of the other occupants of the Gilbertson car.
Wisconsin avenue is 44 feet wide and there is no evidence of other traffic on the street at the time of the collision.
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-verdict 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. Gilbertson'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.
GEHL, J. (concurring).
Counsel for plaintiff concede that while the violation of a penal statute constitutes negligence as a matter of law recovery does not necessarily follow, and that to establish liability causal connection between the violation and the injury must be established; it is for that reason no doubt that the cases on the subject are not discussed in the opinion of the majority.
We said in Smith v. Taylor-Button Co. (1923), 179 Wis. 232, 236, 190 N.W. 999:
"It is well settled that although the violation of a penal statute constitutes negligence, nevertheless, in order to constitute liability, there must be a causal relation between the violation and the injury."
And we cited Steinkrause v. Eckstein (1920), 170 Wis. 487, 175 N.W. 988; Benesch v. Pagel (1920), 171 Wis. 620, 177 N.W. 861; Westgard v. Chicago, M. St. P. R. Co. (1922), 176 Wis. 636, 187 N.W. 658. To these citations might have been added Stacy v. Knickerbocker Ice Co. (1893), 84 Wis. 614, 54 N.W. 1091; Derouso v. International Harvester Co. (1914), 157 Wis. 32, 145 N.W. 771; Schmidt v. Wisconsin Sugar Co. (1922), 175 Wis. 613, 186 N.W. 222.
Among those since decided and in which we have adhered to the rule are Edler v. Algoma F. M. Co. (1930), 200 Wis. 471, 227 N.W. 944, 229 N.W. 64, and McNamer v. American Ins. Co. (1954), 267 Wis. 494, 66 N.W.2d 342. In each of these cases as well as in Derouso v. International Harvester Co., supra, and Westgard v. Chicago, M. St. P. R. Co., supra, there was involved, as there is in the instant case, the very injury which it was intended by the applicable statute to prevent, and still we held that to establish liability there must be a causal relation between the violation and the injury. It seems to me that if we were to reject this rule and adopt the contrary, it would follow that in every case involving the violation of a safety statute and a finding of negligence in that respect and, regardless of the fact that there might be an absolute lack of proof on the issue, it would be required that there be submitted to the jury the relative causal question. The enormous effect of such a ruling will be seen when it is considered that in a great majority of automobile cases the negligence charged constitutes a violation of a safety statute and an injury which is intended to be prevented by the statute.
Language is used in Umnus v. Wisconsin Public Service Corp. (1952), 260 Wis. 433, 51 N.W.2d 42, and Van Pool v. Industrial Comm. (1954), 267 Wis. 292, 64 N.W.2d 813, to the effect that in those cases there existed a presumption that the damage resulting from the violation of a statute in the former and an order of the industrial commission in the latter was caused by the nonobservance of the law or the order. It must not be overlooked, however, that the former involved a violation of the safe-place statute, which imposes a duty beyond that imposed by common law, Bunce v. Grand Sixth Building, Inc. (1931), 206 Wis. 100, 238 N.W. 867, and Mullen v. Larson-Morgan Co. (1933), 212 Wis. 52, 249 N.W. 67, and that in the latter there was found to have been a violation of a safety order in an action brought under the provisions of the Workmen's Compensation Act regarding which this court has said:
"An injury is caused by the failure of an employer to guard a machine where it appears as a fact that the particular injury from which the employee suffered would not have been sustained by the employee if the machine had been guarded as required by law, and the employer is liable therefor unless it is caused by a want of ordinary care on the part of the employee which is wilful. The chain of physical causation is complete, and whether or not the failure to guard is the proximate cause of the injury in the sense in which that term is used in the law of negligence is immaterial." (Italics ours.) Manitowoc Boiler Works v. Industrial Comm. (1917), 165 Wis. 592, 595, 163 N.W. 172.
There is no testimony whatever as to the conduct of Gilbertson and the effect which the absence of taillights and reflectors had upon him and upon the manner in which he operated his car at and just immediately prior to the collision. There is no room for inference. There is no showing of a causal connection between the absence of the lights and the injury.