Bio: Zickert, Ronell (1935 – 1995)
Source: Wisconsin Court Records (7 Apr 1976)
Surnames: Billingsley Zickert
Billingsley VS Zickert
This is an action to recover damages for the wrongful death of Eddie
Billingsley. The action was commenced by Susan W. Billingsley, surviving spouse,
against Ronell A. Zickert, the operator of the truck with which Billingsley
collided, Neillsville Co-op Transport, his employer, and National Farmers Union
Property Casualty Company.
Ronell Zickert was a truck driver for Neillsville Co-op Transport and his duties
involved the delivery of fuel. This fuel was obtained from a Union 76 storage
terminal located on Terminal Drive in the village of McFarland. Along this road
are situated certain other fuel company terminals and some small trucking and
manufacturing companies, most of which are set back from the road and are fenced
off.
At about 10:00 p.m. on April 5, 1972, Zickert had finished refilling his truck
with the next day's load. Zickert started the tanker, intending to exit into
Terminal Drive. He then remembered a correction he had to make on a dispatch
sheet. Rather than continue to block the exit and incidentally not to be the
last out of the lot and so be required to "lock up," Zickert exited and stopped
on Terminal Drive. It is undisputed that at least his right wheels were off the
pavement and Zickert believed he took up about half of the southbound lane with
half of his truck. He testified that clearance lights were lit and the emergency
flashers also were on. Zickert proceeded to the work shed.
Terminal Drive is a two-way, undivided blacktop street. The area material to
this action is entirely within McFarland and ran straight and nearly level with
a slight hill 1000 feet to the rear of the parked vehicle. On the western side
where the tanker was stopped there was a short shoulder adjoining a drainage
ditch. At the time of the accident the pavement was dry and the weather clear.
While Zickert was entering the terminal area, he heard the sound of an
approaching southbound automobile. He testified that he turned, saw his lit
vehicle and observed that there was no traffic visible in the northbound lane.
Sounds of a collision were then heard.
A 1970 Opel station wagon, driven by Eddie Billingsley, had driven into the left
rear of the tanker. The major impact was taken by the center of the Billingsley
car, such that much of the engine was pushed to the driver's compartment. A
police officer who arrived shortly after the accident found the Opel in contact
with the tanker and ordered the truck moved forward to prevent a fire hazard.
The rear wheel of the Opel was over the marked center line, while the front
portion was wholly in the southbound lane and more than four feet from the
center line.
Billingsley was unconscious and was removed after the door was pried open.
Police officers who performed this operation noticed the smell of intoxicants on
him. He was taken to a hospital where he subsequently died, never regaining
consciousness.
Trial was had to a jury which returned a verdict that found both Zickert and the
deceased causally negligent, but apportioned the negligence 90 percent to the
deceased and 10 percent to Zickert. After denying various post-trial motions,
the court entered judgment on February 19, 1974. The plaintiff has appealed. The
defendants have petitioned for review of the costs awarded and the court's
ruling on the use of certain adverse examinations.
HANLEY, J.
The issues presented are as follows:
1. Did the trial court commit error in ruling that as a matter of law the area
surrounding the accident scene was a "business district"?
2. Did the trial court err in instructing the jury on the duty of an automobile
operator to remain awake?
3. Did the trial court err in instructing the jury on the effects of
intoxicating beverages?
4. Should a new trial be granted?
5. In recovering costs are the disbursements of a party for photographs and
plats taxable to a limit of $50 per category?
Business district.
The appellant contends that the trial court erred in its ruling as a matter of
law that the accident scene was in a "business district," defined by sec.
340.01(6), Stats. Appellant argues that this ruling erroneously barred her from
receiving jury instructions on the effects of certain safety statutes.
Zickert well notes that the refusal of instruction on certain statutes had
nothing to do with whether the area in question is a "business district."
Providing that torches or lanterns are to be placed ahead and behind stopped
vehicle, sec. 347.29(1), Stats., is applicable:
"Except as provided in s. 347.26(11) (b), whenever any motor truck, motor bus,
trailer or semitrailer more than 80 inches in width or truck tractor or road
tractor is left standing, whether attended or unattended, during hours of
darkness upon the traveled portion of any highway or the shoulder adjacent
thereto outside the corporate limits of a city or village, the operator of such
vehicle shall display the following warning devices upon the highway during the
entire time the vehicle is so left standing and such devices shall be placed in
the following order:
". . . "
It is undisputed that the accident scene was within the corporate limits of
McFarland. An argument was made that the incorporation of sec. 347.29, by
ordinances of McFarland was intended to delete the corporate limit restriction
by implication, but this contention is spurious in light of the additional
paragraphs of the statute which apply to other conditions without reference to
corporate limits. The warning signals required by the statute are also
applicable to any vehicle, other than an automobile, which is stopped for more
than ten minutes on the traveled portion of any highway or shoulder during hours
of darkness, sec. 347.26(11) (b), without regard to the village limits. This
also has nothing to do with "business districts." Appellant's request for
instructions dealt only with the inapplicable sec. 347.29. A jury instruction
request on sec. 346.26(11) (b) does not appear. The trial court in fact
instructed that no warning signals needed to be put out. Such instruction was
deemed necessary because of the apparently unfounded references to such duty
made by the appellant. In a posttrial memorandum opinion, the court deemed sec.
347.26(11)(b) inapplicable anyway on the record adduced. Zickert's testimony was
quite clear to the effect that he stopped to make a correction and did not
intend other than a brief pause, which the statute specifically intended to
except.
A determination on the issue of the character of the area was relevant only to
the following statute:
"346.51 Stopping, standing or parking outside of business or residence
districts. (1) No person shall park, stop or leave standing any vehicle, whether
attended or unattended, upon the roadway of any highway outside a business or
residence district when it is practical to park, stop or leave such vehicle
standing off the roadway, but even the parking, stopping or standing of a
vehicle off the roadway of such highway is unlawful unless the following
requirements are met:
"(a) An unobstructed width of at least 15 feet upon the roadway of such highway
must be left opposite such standing vehicle for the free passage of other
vehicles.
"(b) Such standing vehicle must be capable of being seen by operators of other
vehicles from a distance of 500 feet in each direction along such highway."
(Emphasis supplied.)
Parking off of a roadway is not required in the following areas defined in sec.
340.01, Stats.:
". . .
"(6) `Business district' means the territory contiguous to a highway when 50 per
cent or more of the frontage thereon for a distance of 300 feet or more is
occupied by buildings in use for business.
". . .
"(50) `Residence district' means the territory contiguous to a highway not
comprising a business district where the frontage on such highway for a distance
of 3000 feet or more is mainly occupied by dwellings or by dwellings and
buildings in use for business."
Along Terminal Drive in the vicinity of the accident are some small businesses
and bulk storage facilities for various oil companies. These latter operations
serve to dispense oil to tanker trucks for delivery to retail distributors, and
usually consist of an administration building, loading racks for tanker filling
and the huge storage tanks themselves. The administration offices are within 150
feet of the road. The loading racks are near them. As for the storage tanks,
they are set back at least 500 feet from Terminal Drive. Most of the oil
companies, including Union 76, are on the west side of the road and a chain link
fence with "no trespassing" signs runs between the entranceways of each
operation. The administration buildings of the fuel companies are between 300 to
500 feet apart.
The trial court found that all the structures were being used for business; they
were owned by commercial profit enterprises who employed people for their
services at these sites. Exhibits demonstrated that the requisite percentage
occupancy test for a "business district" was met by the structures.
Appellant's first objection is that the structures involved were not "people
buildings" and that the area was obviously closed to the public. The trial court
relied on the definition, early pronounced in La Crosse Milwaukee Railroad Co.
v. Vanderpool (1860), 11 Wis. 124, 126, of a building as a structure which has a
capacity to contain, and is designed for the habitation of man or animals, or
the sheltering of property. In a memorandum opinion on motions after verdict,
the trial court observed:
"The fact that the petroleum storage tanks are structures with a capacity to
contain, designed for the purpose of receiving, retaining, and confining fuel is
obvious. In this instance, the Court sees no difference between a storage tank
and a warehouse other than its shape and the fact that the former is designed
and used for the storage of liquids."
Special, qualified definition would in fact be necessary to exclude these
storage tanks from the category of buildings used for business. The fact that
access to the area is limited to employees and to those selected distributors
who are wholesale customers is not a material distinction. Appellant's proposed
interpretation of the statute to limit it to structures capable of human
occupancy and utilized for retail distribution is without merit.
A final challenge is based on the jury assessment of ten percent negligence on
the part of Zickert. Assuming that the apportionment reflects a belief by the
jury that the truck was parked in an improper area when left on the roadway, the
appellant concludes that the statute barring roadway parking, in other than
business or residence districts when off-road space is available, must be held
to be applicable. Respondents are correct in noting that the jury assessment
might be equally attributable to a belief that the vehicle was in a valid
parking area but improperly positioned, or that appellant was correct in her
case theory that Zickert was in the truck and was backing up when the collision
occurred. The assessed negligence of Zickert cannot be ascertained. Yet even if
appellant was correct in her assertion that the negligence apportionment
reflects that Zickert was at fault in not using available parking in the
terminal rather than venturing out on the roadway, as does seem likely on the
record, that is no basis for concluding that the statute applied.
Section 346.51, Stats., and its forerunner have been held to be safety statutes,
a violation of which is negligence. Milwaukee Suburban Transport Corp. v. Royal
Transit Co. (1966), 29 Wis.2d 620, 624, 139 N.W.2d 595. It does not follow that
a finding of negligence means that a safety statute is applicable. Restatement,
2d, Torts, sec. 288c, notes that compliance with a legislative enactment does
not prevent a finding of negligence where a reasonable man would take additional
precautions. The fact that a statute compelling parking off the roadway was not
in force here because of its defined scope certainly did not preclude the jury,
who visited the scene, from determining that Zickert was negligent in parking to
any extent on the roadway in view of the hour, the availability of alternatives,
and his reasons for a stop. Their finding does not impute error in the trial
court's ruling.
Both parties requested the court at the outset of the trial to rule as a matter
of law on the application of sec. 346.51, Stats. None of the facts, concerning
the nature of the area were disputed and the question was one of law, i.e., the
meaning of the statutory definition. A ruling as a matter of law was within the
power of the trial court. The trial court correctly applied the law to the
undisputed facts.
Duty to stay awake.
The trial court gave the following instruction, apparently patterned after
Theisen v. Milwaukee Automobile Mutual Insurance Co. (1962), 18 Wis.2d 91, 118
N.W.2d 140, 119 N.W.2d 393:
"You are instructed that a driver has the duty to stay awake while he drives and
it is within his control either to stay awake, to cease driving, or not to drive
at all when sleepy.
"If while driving a car one is in such a state of exhaustion that he falls
asleep without any premonitory warning, he is chargeable with the knowledge of
any ordinarily prudent man that such exhaustion is reasonably likely to cause
sleep while driving."
Although there was evidence that would refute that the decedent was tired that
evening or that he was asleep at the time of the accident, appellant is in error
in stating that there was "absolutely no evidence" warranting this instruction.
In Aetna Casualty Surety Co. v. Osborne-McMillan Elevator Co. (1965), 26 Wis.2d
292, 305, 132 N.W.2d 510, appeal after remand, 35 Wis.2d 517, 151 N.W.2d 113,
certiorari denied (1968), 389 U.S. 1043, 88 Sup. Ct. 786, 19 L.Ed.2d 834, it was
stated:
"Where there is a conflict in the evidence and inconsistent theories on the
cause of the event are advanced, we believe instructions encompassing both
theories should be given."
Supporting this theory of drowsiness was testimony that the deceased had just
opened a new business and had been working very long periods, fourteen to
sixteen hours daily. On the day of the accident he arose at his normal time of
about 7:00 a.m. and was at work substantially all day until his departure at
10:00 p.m. His wife visited him there for lunch, and he told her he was planning
to complete a large project he had been working on for the last few days and
then would come home. During his breaks that evening he consumed some alcoholic
beverages with an employee. Additionally, the jury could accept the testimony of
various co-workers of Zickert that the truck's lights and flashers were lit at
the time of the collision and they could conclude from other evidence that it
could be observed from a distance of 1000 feet. The appellant's reconstruction
expert admitted that at the time of the collision at least fifteen feet of
roadway was open to the left of the truck and it did not rest on the center
line. No skid marks were observed by the investigating officers and no breaking
sound was heard.
Appellant's challenge to the instruction also indicates a belief that the
instruction is improper unless testimony of an actual observation of sleep is
produced. This is not so. Theisen, supra, and Newberger v. Pokrass (1967), 33
Wis.2d 569, 148 N.W.2d 80, exemplify that the issue may be raised by permissible
inference of the evidence without a direct observation.
Under influence of intoxicants.
Wisconsin J I — Civil, 1035, captioned "Drinking by Driver or Guest: Relation to
Negligence," was given to the jury. Two witnesses testified that the deceased
had consumed a martini at about 5:30 p.m. and had consumed a little more than
two cans of beer a few hours later. Police officers at the scene testified that
they detected the odor of intoxicants on Billingsley.
The instruction given generally admonishes that the jury is not to consider the
drinking of intoxicants in assessing negligence unless it determines that the
items consumed affected the driver to the extent that his ability to exercise
ordinary care was impaired to an appreciable degree. Appellant does not claim
that the instruction was inappropriate, but sees error in the failure to
additionally instruct on sec. 885.235(1) (a), Stats.:
"(1) In any action or proceeding in which it is material to prove that a person
was under the influence of an intoxicant when operating or driving a motor
vehicle, . . . evidence of the amount of alcohol in such person's blood at the
time in question as shown by chemical analysis of his breath, blood or urine is
admissible . . . Such chemical analysis shall be given effect as follows without
requiring any expert testimony as to its effect:
"(a) The fact that the analysis shows that there was five-hundredths of one per
cent or less by weight of alcohol in the person's blood is prima facie evidence
that he, was not under the influence of an intoxicant;
The appellant's claim of error has no merit. An appropriate instruction was
neither included in the written proposed instructions of the plaintiff nor
orally requested at any point of record after the court had informed the
appellant that a drinking instruction would be given. Failure to request waives
the right to an instruction, Schafer v. Time Ins. Co. (1966), 32 Wis.2d 694,
700, 146 N.W.2d 413, and the absence cannot be raised as error on an appeal, Van
Wie v. Hill (1961), 15 Wis.2d 98, 105, 106, 112 N.W.2d 168. Additionally, the
statute and instruction are directed only to objective measuring devices timely
employed to sample the actual alcoholic level in the body, and do not embrace
the opinion of the expert who testified here, who must hypothetically
"reconstruct" the individual's consumption and dissipation rate.
The respondents did not, at any time, contend that Billingsley was intoxicated.
It was their contention that the alcohol which Billingsley consumed, coupled
with the extended hours that he had been working, could have created a condition
of drowsiness which affected his ability to exercise due care in the operation
of his vehicle.
We find no error in the trial court's instruction under the circumstances. Both
parties could argue the weight to be afforded this consumption and other
factors, citing matters within the common knowledge of the jury and aspects of
the occurrence testimonially adduced.
New trial.
Appellant requests a new trial. In Benzschawel v. Stoll (1974), 64 Wis.2d 211,
214, 215, 218 N.W.2d 748, this court repeated:
"The test of granting a new trial in the interests of justice is whether this
court is convinced that there was a probable miscarriage of justice. In viewing
the case as a whole, this court must be convinced to a reasonable certitude that
if there were a new trial it would probably effect a different result. Lock v.
State (1966), 31 Wis.2d 110, 142 N.W.2d 183; Bohlman v. American Family Mut.
Ins. Co. (1974), 61 Wis.2d 718, 214 N.W.2d 52; Saving v. Wisconsin Gas Co.
(1967), 36 Wis.2d 694, 154 N.W.2d 237. And, this does not mean that this court
might think if a different jury would have decided the case, a different result
would have been effected. The grounds asserted for a new trial here, if
eliminated in a new trial, must have the reasonable probability of effecting a
different result."
We think the grounds are insufficient.
Costs under sec. 271.04(2), Stats.
The respondents seek a review of that part of the judgment which refused to
allow them recovery of certain costs. Numerous photographs and two plats were
used by them in presenting their case, for a total expense of $551.80. Recovery
of disbursements is governed by sec. 271.04(2), Stats.:
"(2) DISBURSEMENTS. All the necessary disbursements and fees of officers allowed
by law; the suit tax; the compensation of referees; a reasonable disbursement
for the service of process or other papers in an action when the same are served
by a person authorized by law other than an officer, but in no event shall such
item exceed the authorized sheriff's fee for the same service; amounts actually
paid out for certified copies of papers and records in any public office;
postage, telegraphing, telephoning and express; adverse examinations including
copies; plats and photographs, not exceeding $50 for each such item; an expert
witness fee of $25 for each expert who testifies, exclusive of the standard
witness fee and mileage which shall also be taxed for each such expert; and in
actions relating to or affecting the title to lands, the cost of procuring an
abstract of title to such lands. Guardian ad litem fees shall not be taxed as a
cost or disbursement." (Emphasis supplied.) 1
Reading the $50 limit as applicable to each category, the trial court refused to
allow recovery for such disbursements beyond a total of $100.
In light of the emphasis on "each such item" the statute rather appears to allow
recovery of the cost, not exceeding $50 per item, of each individual plat or
photograph. The trial court indicated apprehension that this interpretation
would allow a party to "run up" costs. Since the proponents of an exhibit are
aware that its cost will have to be borne by themselves if their case is
unsuccessful, self-restraint is induced. Exhibits are for jury illumination and
the statute expressly allows cost recovery for each item.
Other issues raised by the appellant and respondents need not be reached because
of our ruling on the questions involving liability. By the Court. — Judgment is
modified to increase the amount allowed for plats and photographs to $551.80
and, as modified, affirmed.
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