Summary
In Korleski v. Lane (1960), 10 Wis.2d 163, 102 N.W.2d 234, the jury apportioned 50 percent of the causal negligence to the plaintiff and allowed what the trial court called a "very low" award.
Summary of this case from Spath v. SeredaOpinion
March 10, 1960 —
April 5, 1960.
APPEAL from a judgment of the circuit court for Waushara county: HERBERT A. BUNDE, Circuit judge. Reversed.
For the appellant there was a brief by Earl F. Kileen of Wautoma, attorney, and Henry P. Hughes of Oshkosh of counsel, and oral argument by Mr. Hughes.
For the respondents there was a brief by W. T. Kuchenberg, attorney, and James R. Joyce of counsel, both of Appleton, and oral argument by Mr. Joyce.
On April 9, 1958, Clifford Korleski brought action against Andrew Lane, and his insurer, Milwaukee Automobile Mutual Insurance Company. The action was for damages resulting from personal injuries sustained by Mr. Korleski in a collision which occurred on September 21, 1957. The collision occurred between a car driven by Mr. Korleski, in which there was no passenger, and a car driven by Mr. Lane, in which Mrs. Lane and Rosemarie Lane, their granddaughter, were passengers.
The collision occurred at approximately 1:30 p. m. on County Trunk Highway K in Waushara county. Mr. Korleski was traveling north, and Mr. Lane south. County Trunk K is paved with black-top approximately 21 feet wide, straight, and apparently level except for a knoll to the north which does not seem to have interfered with vision. Mr. Korleski was being followed by a second automobile operated by Jerry Opperman, and in which Perry Williams sat on the right front seat.
Korleski had put oversize tires on the rear wheels of his automobile, and was concerned about the fact that, as a result, his speedometer would register a lower speed than he was actually traveling. Shortly before the accident, pursuant to an arrangement with Opperman, he had left his home on County Trunk K and had driven south following Opperman for the purpose of checking his speedometer against Opperman's. They traveled approximately two miles south, turned around at an intersection, and on the return trip to the Korleski home, Korleski took the lead. Opperman testified that on the trip south, he had maintained a speed of 65 miles per hour, and that Korleski checked his speedometer and found that it registered 58 miles per hour. This was discussed at the intersection where they stopped before proceeding on the return trip. Korleski set the pace on the way back, and Opperman tried to maintain a consistent distance. Korleski testified that he held a speed at which his speedometer registered 58 miles per hour, and Opperman testified that his registered 65. They had proceeded about three quarters of a mile when the northbound automobile of Korleski collided with the southbound automobile of Andrew Lane. Korleski testified, in effect, that he at all times maintained a position on the right-hand, or east half of the roadway; that he first saw the Lane automobile when the cars were a considerable distance apart; that Lane later invaded Korleski's side of the highway; that Korleski leaned on the horn, but when it became apparent that Lane did not see or hear him, he applied his brakes and swung to his right; that he had attained a position where all wheels except the left rear were to the east of the pavement when the collision occurred. Korleski further testified that the Lane automobile was completely over on the east side of the road, and that Lane appeared to be looking off toward the east. The testimony of Korleski with respect to the position of the automobiles on the highway was corroborated by Opperman and Williams.
There was testimony that at the moment of the impact, the cars flew apart, the Lane car landing in the west lane of the highway, Korleski's going some 40 feet in the ditch and tipping against a tree. Opperman applied his brakes, leaving tire marks, and his car passed to the east of Lane's. Tire marks of both Korleski and Opperman were shown in photographs and appear to be entirely in the east half of the roadway, with Korleski's curving off to the east edge of the road.
The testimony and photographs indicate that the left front corner of the Lane automobile struck the left side of the Korleski automobile, at and to the rear of the post between the doors.
There was testimony by Mrs. Lane that Lane was driving on his own side of the road; that just before she saw the Korleski automobile she had looked to the east at a fruit stand she had not seen before; that she first saw the Korleski automobile when she looked back at the road; that it was about 100 feet away and coming real fast and "all of a sudden it went sideways" and the Korleski left hind wheel hit the Lane left front wheel.
Mr. Lane testified that he does not generally drive more than 35 miles an hour, 40-50 miles an hour at the most; that at all times he maintained a position on his right-hand, or west half of the roadway; that he first saw the Korleski car when it was a couple of hundred feet away; that Korleski was then on his own side of the road, but then started coming sideways.
The jury found Lane causally negligent with respect to management and control, position on the highway, and lookout. It found Korleski causally negligent with respect to management and control and with respect to speed, but found him free from negligence with respect to his position on the highway. It attributed 50 per cent of the negligence to each driver and awarded $1,000 for Lane's personal injuries (other than special damages), and $3,000 for Korleski's personal injuries other than special damages.
Korleski moved for a new trial, claiming that the answer to the comparison question was contrary to the evidence, that a new trial was necessary in the interests of justice, and that the finding on damages indicated prejudice on the part of the jury. The court denied the motion, and on June 18, 1959, granted judgment on the verdict, dismissing the complaint. Plaintiff Korleski appealed.
Additional facts will be mentioned in the opinion.
1. Damages. We agree with the circuit court that the jury's assessment of $3,000 as Korleski's damages for personal injuries was very low for the injuries described, but not so low as to require a finding that the jury was perverse.
2. Validity of apportionment of negligence. The jury must have found that Lane, inattentive to traffic approaching from the opposite direction, inadvertently operated his car on the wrong side of the roadway; that Korleski approached at an excessive speed, and failed to apply his brakes and get his car off the pavement to the right as soon as he should have after observing the danger. The jury then found that the negligence chargeable to Korleski, excessive speed and failure to take emergency action more quickly, was equal to the negligence chargeable to Lane, operation on the wrong side of the roadway, failure to keep a lookout, and improper management and control after the danger had been observed. Comparison of negligence is peculiarly within the province of the jury, Hadjenian v. Sears, Roebuck Co. (1958), 4 Wis.2d 298, 303, 90 N.W.2d 786, and we are not prepared to say, as a matter of law, that the causal negligence of Korleski did not equal the causal negligence of Lane.
3. New trial in the interest of justice. It appears to us probable, however, on our review of the record, that the apportionment of 50 per cent of the causal negligence to plaintiff Korleski does represent a miscarriage of justice, and we therefore, as a matter of discretion, order a new trial. Sec. 251.09, Stats. Since there is to be a new trial, we discuss only such parts of the evidence as necessary to indicate the reason for our action.
4. Korleski's negligence as to management and control. Korleski testified on adverse examination that the cars might have been 1,000 feet apart when he first saw Lane, although at the trial he said that the distance was 600 feet. Lane began to "wander" or "drift" onto the east half of the roadway shortly after Korleski first saw him. Assuming the lowest speeds testified to, 35 miles per hour for Lane and 65 miles per hour for Korleski, and the longest distance, it would take less than seven seconds for the two cars to meet after Korleski first saw Lane. Although the time was short, the testimony shows that Korleski could have applied his brakes and swung to his right sooner than he did. Lane's it wandering" toward the east may have given Korleski sufficient notice of danger so that failure to act more promptly could be found to be negligence. See Erdmann v. Wolfe (1960), 9 Wis.2d 307, 313, 101 N.W.2d 44, and cases there cited. But it is clear that Korleski's opportunity was very brief at best, and that the initial danger was needlessly created by Lane's position on the highway and inattention to approaching traffic.
5. Korleski's negligence as to speed. Korleski testified that his speedometer registered 58 miles per hour. Opperman testified that his speedometer registered 65 miles per hour. Williams, sitting at Opperman's right, said, "It looked about 70 from where I was sitting." There was testimony that the driver of an automobile is in a position to read the speedometer with greater accuracy than a passenger; that because of the angle at which a passenger on the front seat views the speedometer, the indicated speed appears either higher or lower to the passenger than it does to the driver. Whether higher or lower depends upon the manner in which the speedometer is constructed. A mechanic testified to the effect that in a 1955 Mercury, such as Opperman was driving, the indicated speed would appear lower to a front-seat passenger than it would to the driver. This was at least some evidence that Opperman's speedometer actually indicated a higher speed than the 70 miles per hour appearing to Williams.
Counsel for plaintiff Korleski argue that even if Korleski was traveling faster than 65 miles per hour, his speed was not causal, and cite the case of Clark v. McCarthy (1933), 210 Wis. 631, 635, 246 N.W. 326, in support of that claim. It is clear, however, from the Clark and subsequent decisions that excessive speed may be causal where it prevents or retards a driver from avoiding danger after he sees it. Jewell v. Schmidt (1957), 1 Wis.2d 241, 83 N.W.2d 487; Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 252, 101 N.W.2d 83.
There was testimony in this case that when Korleski first saw Lane, he glanced in his rear-view mirror because of his concern about the fact that Opperman was following him closely and might be endangered if Korleski applied his brakes too suddenly. We think that a jury might properly find that if the two cars, by prearrangement, were traveling too close to each other, an otherwise lawful speed of 65 miles per hour would, nevertheless, be excessive because of the circumstances.
Even, however, if the evidence would support a finding of causal negligence on Korleski's part, both as to management and control and as to speed, we doubt, at least, whether an apportionment of 50 per cent of the causal negligence to plaintiff Korleski is proper and fair under these circumstances.
One other matter appearing in the record suggests that the jury may have been led to believe that Korleski's speed was far greater than the evidence discloses and to have been influenced by this supposition in making the apportionment of negligence. In the opening statement, one of the defense attorneys said:
"I think that we are going to show you beyond question that shortly before this accident happened, Mr. Korleski had been to at least two different garages with a certain part of his automobile and complained that this part did not work because he was unable to get his car over 100 miles an hour."
There was an objection and the court ordered the jury to disregard the statement, although the court then denied a motion for a mistrial. While no evidence supported this statement, there was evidence which may have brought it back into the minds of the jury, notwithstanding the judge's direction to disregard it, and there was argument made to the jury after the close of the testimony to the effect that Korleski and Opperman were using the highway for a "race ground." On cross-examination of Korleski, counsel inquired whether Korleski had not complained at the garage about the functioning of his carburetor or coil the morning of the day of the accident. Korleski first testified that his complaint at the garage was the week before the accident, but then said he was not sure, although it seemed to him it was not the same day. Later, a mechanic testified that on the morning of the day of the accident, Korleski had been at the garage, complaining "that his car wouldn't start and he couldn't get no speed out of it." The mechanic removed the coil, but was unable to locate a coil tester and Korleski left, saying that he would fix the coil himself. Evidently counsel felt that he could properly show by this evidence that on the day of the accident Korleski had a reason to test his car for speed or for some other condition not related to the speedometer, and thus to impeach Korleski's testimony that he was testing the speedometer at a legal speed. Probably the trial court was within its discretion in admitting, the testimony, upon this theory, but the apportionment of 50 per cent of the causal negligence to plaintiff very strongly suggests to us that there remained in the minds of the jury a prejudicial influence from the portion of the opening statement above quoted.
Consequently we exercise our discretion to order a new trial. Because, as previously noted, the damages assessed for personal injuries appeared to both the trial court and ourselves as very low, the new trial should extend to the issue of damages.
By the Court. — Judgment reversed; cause remanded for a new trial.