Opinion
March 8, 1949. —
April 12, 1949.
APPEAL from an order of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed.
For the appellants there were briefs by Norman H. Smith of Green Bay, attorney, and Lee H. Cranston of Green Bay and Bradford, Derber Gabert of Appleton of counsel, and oral argument by Mr. Smith and Mr. Cranston.
For the respondent there was a brief by Everson, Ryan, Whitney O'Melia of Green Bay, and oral argument by E. L. Everson.
Action commenced January 21, 1948, by Norbert G. Daanen, plaintiff, against W. Heraly MacDonald, Wisconsin Public Service Corporation, Leland L. Knoke, Knoke Lumber Company, a corporation, and Employers Mutual Liability Insurance Company of Wisconsin, a corporation, defendants, to recover for injuries received in an automobile collision. After verdict and before judgment the plaintiff and the defendants Knoke, Knoke Lumber Company, and Employers Mutual Liability Insurance Company filed written motions to change some of the answers in the special verdict. This appeal is by the moving defendants from a portion of the order of the trial court disposing of the motions.
The accident out of which this action arose occurred at about 4 p.m. on March 8, 1946, in an underpass upon an east-and-west stretch of Highway 41 about two miles south of DePere, Wisconsin. The highway consisted of a twenty-foot concrete slab with shoulders, the one on the north being ten and a half feet wide and level. On the day of the accident there had been sleet and snow in the forenoon and in the afternoon there was snow with strong winds that caused drifts to form upon portions of the highway. In places the highway was icy. Visibility in the underpass was particularly bad.
On the day of the accident the defendant MacDonald, a resident of Oshkosh, Wisconsin, had been called to Green Bay by his employer to attend a meeting. Shortly prior to the accident he had left Green Bay to return to his home. He drove through the underpass from an easterly direction, but decided, because of the road and weather conditions, to return to Green Bay. He turned his car around and entered the underpass from the west and his car became stalled in a snowdrift on the shoulder on the north side of the highway. Some time after MacDonald's car was stalled plaintiff and another garage employee, Janssen, driving a wrecker, entered the underpass from the same direction. MacDonald asked them to pull him out of the snowdrift. The wrecker was turned around and backed up to the MacDonald car, and they attempted to pull it out of the snowdrift. However, the engine in the wrecker stopped because of snow on the ignition wires and could not be started again. After a conference it was decided that plaintiff and Janssen would attempt to push MacDonald's car out of the snowdrift. If they succeeded, MacDonald was then to attempt to push the wrecker until the motor would start. MacDonald's headlights were on. The wrecker had two red lights on the rear, two red lights on the rear of its cab, and two on the front of its cab, in addition to the headlights. These lights were on at the time of the accident. MacDonald got in his car and started the motor, and plaintiff and Janssen were attempting to push his car to the west. Plaintiff was on the side toward the highway and Janssen was to his right or toward the north. Their backs were to the east. While they were in that position the defendant Knoke entered the underpass from the east, driving a car with headlights on. He failed to see the MacDonald car and plaintiff until he was ten or fifteen feet from them. He struck plaintiff and the MacDonald car, and the plaintiff was severely injured.
The case was tried to the court and a jury, and the jury in its special verdict found the defendant Knoke causally negligent with respect to speed and lookout. The defendant MacDonald was found to be free from negligence and the plaintiff was found to be free from contributory negligence. After the return of the verdict the plaintiff moved for a new trial on the grounds, among others, that the finding of no negligence on the part of the defendant MacDonald was contrary to the uncontradicted evidence, and because the amount of damages awarded to the plaintiff was inadequate. The defendant Knoke also made the usual motions after verdict. The court increased the damages and ordered judgment on the verdict as so amended in favor of the plaintiff and against the defendant Knoke, his employer, and his insurer, unless the plaintiff should, within thirty days from the date of the order, file a notice that he elected to have a new trial against those defendants, and dismissing the complaint against the defendants MacDonald and Wisconsin Public Service Corporation.
The defendants Knoke, Knoke Lumber Company, and Employers Mutual Liability Insurance Company of Wisconsin appealed from that part of the order increasing the damages and ordering judgment against them with option to the plaintiff for a new trial against said defendants. Following that appeal the plaintiff served and filed a motion to review certain rulings of the trial court in the order which he claims to be erroneous. The plaintiff also moved that the appeal be dismissed for the reason that appellants failed to serve their notice of appeal upon the defendants MacDonald and his employer. Other material facts will be stated in the opinion.
The motion to dismiss the appeal must be denied. Sec. 274.11 (1), Stats., provides that the notice of appeal must be served on the "adverse party." The term "adverse party" has been defined by this court in many cases. In Harrigan v. Gilchrist, 121 Wis. 127, 208, 99 N.W. 909, the court states that the supreme test as to satisfaction of the appeal statute with respect to service on an adverse party "is the possession of some substantial interest adverse to the judgment, a revision of which is sought in the appellate court." In Estate Pitcher, 240 Wis. 356, 360, 2 N.W.2d 729, the court used the following language:
"In relation to the term `adverse party' as used in sec. 274.11 (1), Stats., we said in Stevens v. Jacobs, 226 Wis. 198, 201, 275 N.W. 555, 276 N.W. 638, —
"The words `adverse party' in the appeal statute relative to serving notice above quoted includes each and every party whose interest on the face of the judgment is adverse to the interest of appellant. . . . The notice of appeal must be served on every party whose interest is adverse to the interest of appellants. Rogers v. Shove, 98 Wis. 271, 73 N.W. 989; Green Lake County v. Waupaca County, 113 Wis. 425, par. 3, Syl., 89 N.W. 549."
In this case the defendants MacDonald and Wisconsin Public Service Corporation had no substantial interest adverse to the order. They are apparently well satisfied with the order. In their appeal the appellants ask for nothing adverse to them. Therefore they are not adverse parties under the language of the statute, and there was no requirement that notice of appeal be served upon them.
The questions raised by the appeal are as follows: (1) Considering all of the evidence, was the plaintiff's causal negligence as great as the negligence of each of the car-driver defendants as a matter of law? (2) Should the trial court have increased the jury's wage-loss allowance with the option to the plaintiff to accept the increased amount or to have a new trial? The questions raised or sought to be raised on plaintiff's motion to review are as follows: (3) Should the trial court have raised the jury's allowance for wage loss from $6,600 to only $8,500 instead of a sum substantially larger than $8,500? (4) Should the trial court have increased the jury's allowance for pain and suffering? (5) In giving plaintiff an option to take an increased amount for wage loss or a new trial should the trial court have limited the issue on the new trial to the amount damages only? (6) Was the defendant MacDonald causally negligent as a matter of law? (7) Should the trial court have granted plaintiff a new trial as to MacDonald and his employer?
As to question (1) the record discloses that plaintiff and Janssen had aided other stalled automobiles during the afternoon. While extricating their first car they had used flares and warning lights. At the time of this accident they had no more fusees, flares, or warning lights upon the truck. The plaintiff testified on cross-examination that it was the custom of truck operators and wreckers to put out flares when visibility is poor; that visibility was very bad at the time of the accident; that he would have put out flares or fusees if there had been any on the wrecker; and that the MacDonald car was in a dangerous position. From these portions of the record appellants argue that under the provisions of the statute quoted below the plaintiff was causally negligent as a matter of law to a degree equal to or exceeding that of MacDonald and Knoke. Sec. 85.06 (2) (d), Stats., provides as follows:
"No person shall, during any period of time from one-half hour after sunset to one-half hour before sunrise, permit a motor truck, truck tractor, trailer or semitrailer to stand upon any traveled portion of a highway outside of the corporate limits of any incorporated city or village, unless such vehicle is protected by a burning fusee or flare placed on the extreme left side of the vehicle and by lights placed approximately one hundred twenty-five feet to the front and rear of the vehicle, to clearly indicate the presence of such vehicle. Such flares or lights shall be kept burning the entire time such vehicle is left standing. Every such vehicle operated on the highways shall be provided at all times with the flares or other lights required to comply with this subsection."
There was no statutory duty to set out fusees, flares, or other lights at four o'clock in the afternoon, the approximate time of this accident. Whether the failure to put them out was negligent and whether these additional lights would have prevented the accident were questions for the jury. After a review of the record we cannot disturb its findings.
Questions (2), (3), and (4) relate to damages. Appellants claim the amounts found by the jury should have been permitted to stand. The respondent argues that the damages are grossly inadequate and that the court should have increased the amount of damages found by the jury to a greater extent than it did. The, questions were before the trial judge upon motions and the subject was one for the exercise of his sound discretion. We cannot find any abuse of that discretion. The plaintiff has exercised his option to have a new trial and the amount of damages will again be passed upon by a jury.
As to question (5), this matter was also for the sound discretion of the trial court, and we can find no abuse of discretion.
Questions (6) and (7) are not properly before us. The plaintiff, by his motion to review, cannot raise any questions as to the defendants MacDonald and Wisconsin Public Service Corporation. In order to do so the plaintiff would be required to perfect his own appeal as to them. Sec. 274.12, Stats., provides as follows:
". . . In any case the appellee may have a review of the rulings of which he complains, by serving upon the appellant any time before the case is set down for hearing in the supreme court, a notice stating in what respects he asks for a reversal or modification of the judgment or order appealed from. . . ."
As the appeal in this case was from a portion only of the order the appellee is limited on motion to review to that part the order appealed from.
By the Court. — That part of the order appealed from is affirmed.