Opinion
March 5, 1958 —
April 8, 1958.
APPEAL from an order of the municipal court of Kenosha county: URBAN J. ZIEVERS, Judge. Affirmed.
For the appellants there was a brief by Vaudreuil Vaudreuil of Kenosha, and oral argument by Leo E. Vaudreuil.
For the respondent there was a brief and oral argument by Donald F. Boyle of Kenosha.
On February 14, 1956, Toivo Korpela brought action against Wesley Carl Redlin, Jr., and Motor Transport Company. He sought damages for personal injuries sustained in an automobile collision. Defendant's insurer was later added as a defendant and defendants filed a cross complaint for contribution against Donald Johnson, interpleaded defendant.
Korpela and another were guests in a car driven by Johnson. Johnson drove north on Highway 41 and turned left at the intersection of Highway 100 in southern Milwaukee county. Redlin, employed by Motor Transport Company, was driving a tractor-trailer unit south on Highway 41. The right front corner of Redlin's tractor struck the right rear door of Johnson's car. The collision occurred December 23, 1955, at about 8:30 in the evening. The jury found Redlin not negligent as to control, giving warning of his approach, and yielding the right of way, but found him causally negligent in operating his unit at an excessive or dangerous rate of speed. The jury found Johnson not negligent as to control, but causally negligent as to lookout and failure to yield the right of way to Redlin. They found Korpela was causally negligent as to lookout and in failing to warn Johnson. Negligence was allocated 10 per cent to Redlin, 80 per cent to Johnson, and 10 per cent to Korpela. Korpela's damages were assessed at $1,200 for loss of earnings and $12,500 for personal injuries. The court had found $313.55 as medical and hospital bills.
Defendants moved for changes in the answers so as to find Redlin not negligent as to speed and for judgment on the verdict as so changed; in the alternative for judgment on the verdict as rendered; and in the event that the court should order a new trial, that the new trial include the question of damages because excessive and not supported by the evidence. Plaintiff moved, among other things, for a new trial, principally because the comparison of negligence was improper and because justice had not been done.
The court set the verdict aside except for the finding on damages and ordered a new trial of other issues, specifying several grounds. The court's order made it clear that it considered that the negligence of the plaintiff guest contributed less to the accident than the negligence of the defendant. One of the separate grounds stated in the order for a new trial was that the interest of justice required it because the jury's comparison of negligence was against the great weight and clear preponderance of the evidence. The court found that the portion of the special verdict determining the damages was sustained by the evidence. Defendants appealed.
Prior to the collision it had been a little foggy and drizzling and the highway was slick at least in the vicinity of the intersection. At this intersection Highway 41 is divided into northbound and southbound strips. Near the intersection each strip has three lanes and is 41 feet wide. The strips are separated by a 27-foot parkway. Highway 100 is 40 feet wide. Traffic is controlled by stop and go lights which, at and prior to the collision, were green for north and south traffic. 1,120 feet north of the intersection there is a sign limiting the speed to 40 miles per hour and starting 1,400 feet north of the intersection there is a 2 per cent down grade toward the intersection.
Johnson testified he did not see Redlin's unit prior to the collision and Korpela testified that he did not see it until it was within 25 to 50 feet of Johnson's car. Redlin testified that he saw Johnson come into the intersection and start the turn and it appeared to him that Johnson was putting on his brakes but then Johnson suddenly shot out in front of Redlin.
Redlin testified that he was traveling 40 miles per hour when he started down the hill north of the intersection but had reduced his speed to between 28 and 30 miles per hour. At one point he said this was his speed immediately north of the intersection; at another point he said this was his speed at the time of the impact. He testified that he applied his brakes so as to lock the wheels some 20 or 25 feet from the intersection, swung to the right about 10 feet, skidded about 10 feet, but did not move forward after the collision. Redlin also testified several times that he first saw Johnson's car when Johnson was 500 feet south of the intersection and Redlin was 500 feet north of it. At other times he stated that when Johnson crossed the south lane of Highway 100, Redlin was 500 feet north of the intersection. Korpela and Johnson placed Johnson's speed in the intersection at some 10 to 15 miles per hour.
Further facts will be referred to in the opinion.
The principal questions raised by appellants are: (1) That as a matter of law Redlin was not negligent as to speed, (2) that if negligent, his speed was not causal, (3) that the court should not have granted a new trial in the interest of justice, and (4) that the damages found by the jury are excessive. We conclude that the finding as to speed is supported by the evidence as well as the finding that it was causal and that the trial court did not abuse its discretion in granting a new trial in the interests of justice and in limiting the new trial so as to permit the finding on damages to stand. Accordingly, we reach the conclusion that the order granting a new trial is to be affirmed.
(1) Negligence as to speed. There are two reasons why the evidence presented a jury question as to excessive or dangerous speed. Redlin testified several times that when he was 500 feet north of the intersection, Johnson was 500 feet south of it. This testimony would lead to the conclusion that Redlin and Johnson were traveling at approximately the same average speed. Redlin also testified, however, that when he was 500 feet north of the intersection, Johnson was entering the intersection. Johnson's speed while in the intersection was placed at from 10 to 15 miles per hour. On the basis of this testimony, Johnson would have traveled a relatively few feet while Redlin was traveling 500 feet, and the jury could properly find that Redlin was traveling more than 40 miles per hour and thus exceeding the legal limit at that place.
In addition sec. 85.40 (2) (a), Stats. 1955, prohibits a speed greater than is reasonable and prudent in view of the conditions and hazards existing and requires an appropriate reduced speed when approaching an intersection and when special hazard exists with regard to other traffic or by reasons of weather or highway conditions. The testimony was that the highway was "slick" and apparently Redlin understood for some period prior to reaching the intersection that Johnson was contemplating a left turn. The tractor-trailer unit weighed 32,000 pounds. Thus it was a jury question whether even the speed of 28 or 30 miles per hour, admitted by Redlin, was negligent.
(2) Excessive speed was causal. If the speed were excessive the jury could find that it was causal because it made it more difficult for Redlin to slow down or stop in time to avoid the collision. Heagney v. Sellen (1956), 272 Wis. 107, 112, 74 N.W.2d 745, 75 N.W.2d 801, citing Thelen v. Machotka (1954), 268 Wis. 1, 66 N.W.2d 684.
(3) Order for new trial discretionary. The jury found plaintiff negligent in failing to keep a proper lookout and that this negligence was a cause of the accident. The evidence presented a jury issue on these questions. The jury also found him negligent in failing to give proper warning; and that this negligence was a cause. Perhaps the jury failed to make a distinction between failure to warn because of lack of lookout and failure to warn after he saw the tractor-trailer unit. It appears that when he first saw the unit both vehicles were so close to the point of collision that failure to warn then could not have been a cause. In any event, the jury found that the excessive speed of Redlin and the lack of lookout and warning by plaintiff contributed equally to the accident. Plaintiff was a passenger. A left turn is essentially a momentary operation. It is not surprising that the trial court felt that the jury's comparison was against the great weight and clear preponderance of the evidence. The trial court has discretionary power to order a new trial in the interest of justice when a jury's comparison of negligence is against the great weight of the evidence. Bolssen v. Heenan, ante, p. 110, 88 N.W.2d 32; Guptill v. Roemer 1955), 269 Wis. 12, 19, 68 N.W.2d 579.
(4) Damages not excessive. A trial judge who has seen and heard the witnesses and observed the injured party has a better opportunity than we to determine whether damages are excessive. Koepp v. National Enameling Stamping Co. (1912), 151 Wis. 302, 322, 139 N.W. 179. It is primarily the trial judge who should determine whether a new trial should be limited to issues other than damages. "He is in much better position than are we to ascertain whether it would be unjust to require a party to relitigate the question of damages." Leonard v. Employers Mut. Liability Ins. Co. (1953), 265 Wis. 464, 470, 62 N.W.2d 10. We have in mind the fact that proving damages entails some considerable expense where doctors are to be witnesses, and unless the record discloses a substantial reason for reversing the trial court's determination that the damage question should not be retried, we should not do so.
While Korpela was able to return to his home by taxi after the accident, he suffered severe pain and stayed in his room until he saw his doctor December 27th. X rays then showed a fracture of the left transverse process of the third lumbar vertebra. He was in the hospital from December 31st to January 16th, treated with hot packs and sedatives to relieve pain. He tried to work on February 17th, suffered pain, and an X ray then showed the process had not healed. He had been fitted with a brace while in the hospital and wore it until he returned to work on March 30th. He testified he could not work before March 30th. He had been earning $97.20 per week and thus could have earned $1,263.60 in thirteen weeks. The jury allowed $1,200 for loss of earnings.
Korpela's work has generally been on construction jobs. He was a carpenter helper at the time of the accident and worked as such after March 30, 1956, and until the time of trial. He testified that he has slight pain at all times with some stiffness; some days are good and some are not; at the end of a full day his back gets tired. He can't bend to the right as much as to the left.
An orthopedic surgeon had been called in while Korpela was in the hospital and treated him thereafter. He testified that the transverse process is a place for attachment of the muscle structure that supports the spinal column. A fracture of the transverse process is primarily a muscle injury and the muscle spasm is so great that it pulls the ridge of bone over and there is a lot of pain. It leaves scar tissue that causes restricted motion, stiffness, and soreness. Shortly before trial, May 2, 1957, he examined Korpela and found a moderate amount of muscle spasm in the right lumbar region, found him able to bend normally to the left and backward, but only 50 per cent to the right. It was the doctor's opinion that Korpela will continue to have discomfort and some restriction of motion; that he will be able to do heavy work at times, but will be unable to do heavy work continuously; that Korpela has seven or eight per cent permanent disability. Korpela had never had back trouble before the collision and was forty-three years of age at the time of trial, with a life expectancy of approximately twenty-six years. The jury allowed $12,500 for personal injuries in addition to the $1,200 for loss of earnings. In our opinion, the award is sustained by the evidence and the record discloses no reason to overrule the trial court's determination that the damage award was fair and need not be retried.
By the Court. — Order affirmed.