Opinion
December 2, 1957 —
January 7, 1958.
APPEAL from a judgment of the circuit court for Eau Claire county: CLARENCE, E. RINEHARD, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Frank L. Morrow of Eau Claire.
For the respondents there was a brief by Wilcox Sullivan of Eau Claire, and oral argument by Francis J. Wilcox.
Appellants' statement of facts is adopted by the court as follows:
"On August 28, 1954, the plaintiffs Clara Deignan and Frank Deignan, husband and wife, made an automobile trip to Adamsville, Tennessee, in a Ford automobile belonging to and driven by their twenty-seven-year-old daughter, Patricia Deignan.
"On September 1, 1954, Patricia Deignan drove her mother and some members of the Gallagher family to Memphis, Tennessee, on a shopping trip. On the return trip from Memphis at about 8 p. m., the accident that gave rise to this action occurred near Adamsville, Tennessee.
"Patricia Deignan driving her car, had followed a line of three semitrucks and trailers for about one hour, up to the time that she prepared to make a left turn. There was a farm truck behind the car driven by Patricia Deignan that had followed the Deignan car for about one-half hour before the accident.
"Miss Deignan was driving at a rate of about 40 to 45 miles per hour, on a fairly straight and level road. At a point about 150 to 200 feet from the place where she intended to turn she put on the direction lights to indicate her intention to make a left turn. She also signaled with her left hand, and pulled closer to the center of the road. She decreased the speed of her car.
"There were no vehicles approaching toward the Deignan car from the opposite direction.
"The semitrucks gained distance as Miss Deignan slowed down. She made her turn and had the car diagonally across the road when she saw the lights of the vehicle behind in such close proximity that she thought her car might be struck. She increased the speed of the car to get further onto the side road, and in so doing, got the car onto the right shoulder of the side road and the car went into the ditch and stopped about 15 or 20 feet from the road she had been traveling on."
Mrs. Deignan was injured when the car went into the ditch.
Trial was to a jury. The jury found Patricia guilty of causal negligence in the management and control of her automobile. It awarded damages of $4,000 for Mrs. Deignan's personal injuries and $500 to her husband for loss of his wife's society and services.
Appellants submit that Patricia is absolved as a matter of law from negligent management and control because she was confronted by a sudden emergency to which she had not contributed, citing Johnson v. Prideaux (1922), 176 Wis. 375, 378, 187 N.W. 207:
". . . an automobile driver, who by the negligence of another is suddenly placed in an emergency . . . , is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice.'"
And Frankland v. De Broux (1947), 251 Wis. 210, 217, 28 N.W.2d 256, where we said:
"Bauman was confronted with an emergency to . . . , to which no act on his part contributed. He cannot be charged with negligence as to control merely because he did not stop his truck, if he could have stopped it, or did not turn farther to the right if this was possible, when he took the course which on the spur of the moment seemed to be the only thing he could do to avoid the impending collision."
There are at least two burdens which appellants must carry before the emergency doctrine is available to them. They must convince the trier of the fact that an emergency developed so suddenly and unexpectedly that there was no time for considered action; and that no act or failure to act by the person who claims the protection of the doctrine contributed to produce the emergency.
Patricia's testimony on the accident was (summarized):
"I started going into the turn, cutting across the highway, and as it seemed to have the car quite level diagonally across the highway, I noticed lights coming up on my left as though they were going to hit me. I then increased my rate of speed. I thought I could make the turn. I went to the shoulder on the turn of the road and that pulled me into the ditch. When the car came to a stop, I was about 15 to 20 feet off of Highway No. 64. The vehicle from behind gave me no audible signal of any kind. I did the best I knew how in making that left turn.
"When I observed the truck behind me, when I started to make the turn, I thought I would have time to turn and get out of the way. When I speeded up to get out of the way of the truck that was behind me, I thought I could keep my car under control, and I thought I could still make the turn, but I could not keep my car under control."
Mrs. Deignan testified that Patricia slowed down before making the left turn.
The following truck did not collide with the Deignan car. One may doubt that an emergency actually existed but, if it did, Patricia's alteration of her course and speed may well be found to be contributing factors.
Tennessee recognizes the emergency doctrine, as we do, but it appears that the courts in that state are even more reluctant than we to take the question from the jury. Our trial court considered that a jury question was presented, in which we agree. It instructed the jury on the existence and application of the "emergency" defense. On this record we think that is as much as appellants were entitled to. After that the determination of the fact is for the jury.
Appellants submit that the damages are excessive. Plaintiffs testified to severe pain over a substantial period, and to considerable lasting physical impairment. The weight and credibility of their evidence was for the jury. We cannot say that the awards of damages are excessive.
Appellants complain of instructions on damages but we do not find them erroneous or prejudicial. They also assert error in the admission of a chiropractor's bill. A proper foundation was not laid, but the bill was admitted without timely objection. When objection was made the trial court considered it came too late. This is largely a matter for the court's discretion. The amount of the bill is not in the record; it cannot have been large. The record does not permit us to find any substantial prejudice nor, under the circumstances, error in the initial admission of the evidence nor abuse of discretion later in retaining it.
By the Court. — Judgment affirmed.