Before DUFFY, PARKINSON*fn1 and KNOCH, Circuit Judges.
This is a suit to recover damages alleged to have been caused by the negligent operation of a tractor-trailer unit operated by McDowell Truck Line, Inc. (McDowell), one of the defendants. The case was tried to a jury. Under the Wisconsin comparative negligence law, the jury attributed 55% of the causal negligence to the plaintiff and 45% to the defendants. Upon this verdict and under Wisconsin law, the Court entered judgment for the defendants.
On July 12, 1955, at approximately 3:00 a. m., plaintiff was operating a tractor-trailer unit on U. S. Highway 41, a short distance north of the Wisconsin-Illinois state line. Plaintiff was driving this unit in a southerly direction. At this point, Highway 41 is a four-lane highway. The two southbound lanes are each twelve feet wide or a total width of twenty-four feet. There is a white line in the center of the two southbound lanes. The two northbound lanes are separated from the two southbound lanes by a grass plot approximately twenty feet in width.
Plaintiff had been operating on the left or east portion of the southbound lanes for some time prior to the collision as he had passed a number of tractor-trailer units and trucks which also were traveling in a southerly direction. There is a wide shoulder on the west side of the highway. In the area of the collision, the roadway is level and straight. Plaintiff was driving an International tractor ten years old. His load was thirteen tons.
North of the scene of the accident and on the west side of the highway is a large filling station known as Martin's Filling Station. Part of its equipment is long tubular lights mounted on poles which are located near its pumps. At the time of the collision, these lights were lighted. The south driveway of Martin's Filling Station is approximately 1000 feet north of the point of collision.
At a point approximately east of where the collision occurred, and on the east side of the highway, the State of Wisconsin maintains a truck-weighing station. There are large overhead lights adjacent to this station. These lights were burning at the time of the accident.
After passing the last of the tractor-trailer units or trucks which were traveling in a southerly direction, plaintiff started to pull over to the west of the southbound lanes. When he was straddling the center line and at an angle, he first saw the McDowell trailer moving south and which, according to plaintiff's testimony, was sixty to eighty feet distant. Weather conditions were clear and dry. There was no mud, dust or other foreign substance on the pavement. Plaintiff applied his trailer brakes. Skid marks on the pavement were forty-seven feet in length. The right front fender of plaintiff's tractor struck the left corner of the McDowell trailer. The impact tore off the right saddle tank of plaintiff's unit. The fuel became ignited and plaintiff was very severely burned.
Ray Swaney was driving the McDowell unit that was struck from the rear by the tractor driven by plaintiff. He had driven into the Martin Filling Station for gas. While there he checked the tires. After the unit was serviced, Swaney testified he started the motor on his tractor and turned on the lights including the trailer and clearance lights. He drove on Martin's south driveway and stopped ten feet distant from the highway. He could see his headlights shining across Highway 41. Swaney noted some headlights on the highway to his left which were from 1/4 to 1/2 mile distant. He then pulled on to the highway and claimed that as he drove in a southerly direction he was entirely in his right lane on the westerly side of the highway. He testified positively that he was not straddling the white center line. After proceeding southerly about one thousand feet, and while driving about thirty miles per hour, the McDowell trailer was struck from the rear by the tractor driven by plaintiff.
It was and is plaintiff's claim that the driver of the McDowell trailer unit was negligent because the trailer, just prior to the collision, did not have a lighted red taillight plainly visible 500 feet to the rear of the vehicle. Plaintiff also claims the two red clearance lamps on the trailer were not lighted. In the special verdict, the jury supported plaintiff's contentions in each of these respects, and found such failure was a substantial factor in producing the collision. However, the jury found that the trailer was equipped with two red reflex reflectors mounted on the rear of the trailer in such manner as to be reasonably visible at a distance of from 500 feet to 50 feet from such vehicle, when directly in front of lawful upper head-lamp beams during the hours of darkness under normal atmospheric conditions.
The jury found there was no negligence by Swaney, the driver of the McDowell unit, by reason of the position of that unit on the highway just prior to and at the time and place of the collision.
The jury found the plaintiff negligent in failing to keep a proper lookout, and in failing to keep his tractor-trailer unit under proper management and control. The jury found such negligence by plaintiff was a substantial factor in producing the collision. However, the jury found the plaintiff was not negligent as to speed.
Plaintiff argues that under decisions of the Wisconsin Supreme Court, before a person can be negligent as to both lookout and management and control, there must be sufficient time for him not only to see the dangerous condition and make an evaluation thereon, but there must still be sufficient time thereafter to take effective action to avoid the accident.
If the McDowell unit had been at a standstill, a stronger case could be made as to the lack of time for plaintiff to take effective action, but the McDowell unit was moving ahead at a rate of at least thirty miles per hour. Plaintiff testified he was driving at forty miles per hour.On this basis, the McDowell unit and plaintiff's unit would have traveled about 318 ...