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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
November 18, 1997
A party may file with the Supreme Court a
                                                                                   Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                   Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                   of Wisconsin              STATS.
No.                                                                                97-1166
STATE OF WISCONSIN                                                                 IN COURT OF APPEALS
                                                                                   DISTRICT III
LILLIAN MCKEE,
PLAINTIFF-APPELLANT,
V.
PRICE COUNTY AND WISCONSIN
COUNTY MUTUAL INSURANCE CORP.,
DEFENDANTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for Price County:
GARY L. CARLSON, Judge.  Affirmed.
Before Cane, P.J., Myse and Hoover, JJ.
PER CURIAM.         Lillian McKee appeals a judgment dismissing
her negligence action against Price County and its insurer, Wisconsin County
Mutual Insurance Corp.   McKee argues that a jury question was presented whether
the County breached its duty of ordinary care.   We affirm the judgment.




NO. 97-1166
The action arises out of a collision resulting in the death of McKee's
son, Timothy McKee.   On February 15, 1995, on State Highway 8, Patrick Potter
attempted to pass a line of cars following a County snowplow.    Timothy was
driving a vehicle in that line of cars.    The snowplow, plowing the westbound
shoulder of the highway, created a cloud of snow extending the width of the
highway.   The snowplow driver estimated his speed between thirty and thirty-five
miles per hour; another witness estimated the plow's speed at forty to forty-five
miles per hour.
The accident occurred four to five miles outside town limits.   It had
snowed the night before, but was not snowing at the time of the collision.   When
Potter came up behind the line of cars, he pulled into the eastbound lane to pass.
He saw what looked like snow blowing across the highway and then collided with
an oncoming logging truck.   The logging truck driver lost control and crossed the
center line, colliding with Timothy's vehicle.   The logging truck driver testified
that as he came out of the blinding snow cloud, he saw Potter's pickup a split
second before the collision.   He testified that the snow cloud created by the plow
completely concealed the objects behind it.   He swerved to miss but there was no
time.
The snowplow operator testified that he knew he was creating a
snow cloud, and that he was able to reduce the size of the cloud by slowing down.
He testified that he maintained a consistent speed.   There is no evidence that he
deviated from his course of travel.   The traveled portion of the roadway was salt
covered and not slippery.   He was aware of the hazard created by the snow cloud.
After McKee rested, the trial court concluded that the issue of the
snowplow operator's negligence was controlled by Jacobson v. Greyhound Corp.,
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NO. 97-1166
29  Wis.2d  55,  138  N.W.2d  133  (1965),  and concluded  that McKee  failed to
demonstrate a breach of ordinary care on the part of the County.   It granted the
County's motion for directed verdict and entered a judgment of dismissal.   McKee
appeals.
McKee argues that the trial court erroneously dismissed because she
presented a jury question with respect to the County's negligence.   Before we turn
to  McKee's  contention,  we  note  that,  contrary  to  RULE  809.19(1)(d)  and  (e),
STATS., McKee fails to provide any citations to the record, risking sanctions that
include striking the brief.   See RULE 809.83(2), STATS.   A reviewing court need
not sift the record for facts to support counsel's contentions.   Keplin v. Hardware
Mut. Cas., 24 Wis. 2d 319, 324, 129 N.W.2d 321, 323 (1964).   This court cannot
continue to function at its current capacity without requiring compliance with the
rules  of  appellate  procedure,  the  purpose  of  which  are  to  facilitate  review.
Cascade Mt. v. Capitol Indemn. Corp., No. 96-2562 slip op. at 5 n.3 (Wis. Ct.
App. July 3, 1997, ordered published Aug. 26, 1997) (569 N.W.2d 45).1   In the
future, counsel must be aware that strict compliance will be expected.
Because the circumstances of this case resemble those of Jacobson,
we recount that case in some detail.   A collision between a passenger car and a
Greyhound bus occurred in mid-afternoon on a straight stretch of Highway 12
running north and south.   Id. at 58, 138 N.W.2d at 134.   It was cold and windy but
1   When this court was created in 1978 as a 12-judge court, it was anticipated that within
five years it would reach its capacity of 1,200 appeals annually, or 100 cases per judge. Cascade
Mt. v. Capitol Indemn. Corp., No. 96-2562 slip op. at 5 n.3 (Wis. Ct. App. July 3, 1997, ordered
published Aug. 26, 1997).   That capacity was exceeded its first full year of operation and, in
1996, 3,628 cases were filed in our 16-judge court, amounting to 227 opinions per judge.   Id.
This  figure  does  not  include  petitions,  motions  and  miscellaneous  matters,  each  requiring
disposition by order.                                                                                  (In   1996,  324  petitions for leave to appeal,  5,643 motions and  931
miscellaneous matters were filed.)    Id.
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NO. 97-1166
not snowing.   The snow was blowing and drifting across the highway.   A Clark
County snowplow was proceeding north plowing intermittent drifts on the east
shoulder and the roadway.   Id.   The truck's lights were on and properly working.
As the snowplow encountered drifts, it would create a large cloud of snow that
restricted visibility for short intervals.   Id. at  59,  138 N.W.2d at  134-35.   The
operator was aware of the hazard the snow was creating.   Id.
The  car  was  traveling  in a  southerly direction and  the  bus  in  a
northerly direction.   Id. at 58, 138 N.W.2d at 134.   The Greyhound bus driver
decreased his speed as he came up behind the snowplow.   "As the bus and the car
approached the snowplow a large cloud of snow was thrown into the air.   Both
drivers claimed they were momentarily unable to see anything."   Id. at 59, 138
N.W.2d at 135.   The bus driver described it as a solid wall of snow and testified
that he did not know where he was on the highway.   Id.   A head-on collision
occurred just south of  the snowplow on the west part of  the roadway in the
southbound lane.   Id.
The  survivors  of    the  passenger  car  initiated  an  action  against
Greyhound, which interpled the County, alleging negligence on the part of the
snowplow  operator.    Id.  at  57-58,  138  N.W.2d  at  134.    The  court  received
testimony that "the faster you plow snow the higher it will be thrown in a strong
wind"  and  it  would  impair  visibility.    Id.  at  61,  138  N.W.2d  at  136.        The
hazardous weather conditions were known to all three drivers.    Id. at  64,  138
N.W.2d at 138.   The drivers saw the snow blowing across the highway when the
plow hit drifts.   Id.
In rejecting contentions of negligence based upon improper speed
and lookout, our supreme  court held that "a driver ordinarily has no duty of
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NO. 97-1166
maintaining a lookout to the rear unless a deviation from his course of travel or his
position on the highway could reasonably create or constitute a hazard to drivers
approaching from the rear."   Id. at 65, 138 N.W.2d at 138.   "To say that he was
required to stop before plowing each drift on the busy state highway would be
such  an  unreasonable  restriction  as  to  practically  prevent  any  efficient
snowplowing."   Id.
Jacobson also held that absent any "testimony as to the length, width
or depth of the drifts, or the size or height of the plow blade, coupled with his
position on the highway, it would be only speculation to find that a speed of 20
miles per hour would appreciably affect the blowing snow hazard, or that his
speed was negligence."   Id. at 65-66, 138 N.W.2d at 138.
Applying Jacobson's analysis to the present case, we conclude that
the trial court correctly entered judgment of dismissal.   The trial court does not
grant  a  motion  for  directed  verdict  unless  it  is  satisfied  that,  considering  all
credible evidence and reasonable inferences in the light most favorable to the
opposing party, there is no credible evidence to sustain a finding in favor of that
party.   Section 805.14(1), STATS.   Cases should be taken from the jury only when
plaintiff's evidence, given the most favorable construction it will reasonably bear,
is insufficient to sustain a verdict in plaintiff's favor.   Murawski v. Brown,  51
Wis.2d 306, 311, 187 N.W.2d 194, 196 (1971).
Here, the evidence was undisputed that the snowplow operator did
not deviate from his course of travel on the highway.   Although a snow cloud was
created, this obstacle was evident to all the drivers on the road.    There is no
suggestion that the operator was not complying with rules of the road.    Any
suggestion that the operator's speed was a factor would be mere speculation absent
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NO. 97-1166
testimony showing the relationship between the snow cloud and miles per hour,
the length, width, or depth of the snow, the size of the blade and the plow's
position on the highway.    Jacobson,  29 Wis.2d at  65-66,  138 N.W.2d at  138.
Because the case before us cannot be meaningfully distinguished from Jacobson,
we conclude that the court correctly relied upon it when concluding that McKee
failed to raise a jury issue with respect to the snowplow operator's negligence.
McKee argues that Jacobson is inapplicable in light of more recent
cases establishing a driver's duty to maintain a lookout to the rear, Bentzler v.
Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967), and Krainz v. Strle, 81 Wis.2d
26,  259 N.W.2d  707  (1977).   We disagree.   Bentzler involved a motorist who
reduced his speed on the highway to five miles an hour.   The court held that if the
driver "intended to stop or slow down appreciably, he had the duty of making an
observation to the rear to see that it could be done with safety."   Id. at 371, 149
N.W.2d at 631.   Bentzler is consistent with Jacobson.
Krainz reaffirmed Jacobson, stating that controlling Wisconsin law
provides that
the driver of the front car owes no duty to the driver of the
car behind him, except to use the road in the usual way ….
However, if the driver of the front car intends to deviate
from his course of travel or suddenly stop or decrease his
speed in such a manner that would create a hazard to a car
following  in  a  lawful  manner,  he  must  then  exercise
ordinary care to make a lookout to the rear before making
such movement.
Krainz, 81 Wis.2d at                                                                   29, 259 N.W.2d at 708.   Bentzler and Krainz are consistent
with Jacobson, and McKee's argument therefore fails.
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NO. 97-1166
Next, McKee contends that the trial court erred because it failed to
consider Frostman v. State Farm Mut. Ins. Co., 171 Wis.2d 138, 491 N.W.2d
100  (Ct.  App.  1992).    We  disagree.    In  Frostman, we  rejected the  County's
argument that it was entitled to summary judgment because it was immune from
liability based upon public policy and § 893.80(4), STATS., granting immunity to
municipalities for discretionary acts.   In so holding, we stated, "Rather, we are
merely willing to impose liability when the county fails to exercise its duty of
ordinary care when engaging in snowplowing."   Id. at 143, 491 N.W.2d at 102.
That is no different from what Jacobson holds and what the trial court held here.
Cf. id. at 64, 138 N.W.2d at 138 ("The county does not contend that it could not be
held liable under any circumstances nor that the snowplow driver could not have
been negligent regardless of  how he drove  the vehicle.").    Here,  the issue is
whether,  considering  all  credible  evidence  and  inferences  in  the  light  most
favorable  to  McKee,  a  reasonable  jury  could  have  found  that  the  snowplow
operator  failed  to  exercise  its  duty  of  ordinary  care.    Because  the  issue  in
Frostman was different from the issue presented here, the trial court did not err by
failing to apply Frostman.
Finally, McKee argues that the trial court erred by failing to consider
the snowplow operator's duty to the oncoming logging truck driver.    There is,
however, no evidence that the snowplow operator breached his duty of care to the
oncoming driver by plowing snow near the shoulder of the opposite lane while
maintaining consistent speed.
Without citation to the record, McKee asserts that the operator failed
to maintain proper lookout, because the operator testified that he had no specific
recollection of passing a logging truck.   The operator testified that he did not see
the accident because it happened behind him, and he had no idea that it occurred
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NO. 97-1166
until some twenty minutes later when he was on his return trip and came upon the
accident scene. We conclude that the operator's lack of specific recollection is
insufficient to show improper lookout.
Again  without  record  citation,  McKee  argues  that  the  operator's
"supervisors  advised  him  to  slow  down  to  reduce  the  size  of  a  cloud  upon
becoming aware of other vehicles.   Clear and compelling evidence was offered
that established that the snowplow operator failed to follow these instructions."
We disagree that there was any evidence to support a finding that the operator
breached instructions from supervisors.   The trial transcript fails to indicate that
any  supervisor's  testimony  was  offered.    In  her  brief,  McKee  relies  on  the
following testimony of the operator:
Q.   You were instructed before that day to do your best to
keep  the  snow  cloud  down  so  that  vehicles  could  pass
safely; is that right?
A.   Yes.
.…
Q   In  any  event,  you  would  plow  creating  a  cloud  that
would  impair  visibility,  and  you  would  keep  notice  of
vehicles   behind   you,   and   when   you   saw   vehicles
approaching,  you  would  reduce  your  speed,  that  would
reduce the size of the cloud; is that right?
A.   Yes.
This testimony fails to support a finding that the operator breached
any instructions from his supervisors relative to oncoming vehicles.   First, it refers
to  vehicles  behind  him.    Second,  although  the  operator  testified  that  he  was
instructed to "do his best" to control speed in order to control the size of the snow
cloud, there is no evidence as to what size snow cloud was permissible or that the
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NO. 97-1166
size of the snow cloud he created at the time in question violated instructions.
There is no evidence that, short of stopping altogether, the operator would have
been able to avoid impairing visibility.   "To say that he was required to stop before
plowing each drift on the busy state highway would be such an unreasonable
restriction as to practically prevent any efficient snowplowing."    Jacobson,  29
Wis.2d at 65, 138 N.W.2d at 138.   Because there is no evidence that the creation
of the snow cloud violated instructions, McKee's argument fails.    Any verdict
finding a breach of ordinary care on the part of the snowplow operator would
necessarily be based upon speculation.   Accordingly, the trial court's judgment of
dismissal was appropriate.
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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