Opinion
September 10, 1957 —
October 8, 1957.
APPEALS from two judgments of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed in part; reversed in part.
For the appellants there was a brief by Chadek, Cornelisen, Denissen, Farrell Kranzush of Green Bay, and oral argument by Richard J. Farrell.
For the respondent Dale G. Le May there was a brief by Cohen Parins of Green Bay, and oral argument by Robert J. Parins.
For the respondents Marks and Rural Mutual Casualty Insurance Company there was a brief by Evrard, Evrard, Duffy, Holman Faulds and Arthur Kaftan, all of Green Bay.
Case No. 12:
For the appellants there was a brief by Evrard, Evrard, Duffy, Holman Faulds of Green Bay, and oral argument by John P. Duffy.
For the respondent there was a brief by Reynolds, Bittner Reynolds of Green Bay, and oral argument by Robert L. Bittner.
On July 25, 1955, Dale Le May began an action for damages for personal injuries against Everett Marks and Rural Mutual Casualty Company, his insurer. On motion of defendants, Patricia Le May and Maryland Casualty Company, her insurer, were impleaded as additional defendants. Marks and Rural Mutual cross-complained against Patricia Le May and Maryland Casualty. Dale Le May cross-complained against Patricia Le May and Maryland Casualty. On February 27, 1956, Patricia Le May began an action for damages for personal injuries against Marks and Rural Mutual. The two cases were tried together.
The cases arose out of a collision between a Pontiac owned by Dale Le May and driven by Patricia and a Ford driven by Everett Marks. The collision occurred May 22, 1955, about 1:30 a. m. on a straight, level portion of Highway 41, north of Duck Creek and Green Bay. Patricia was driving south and Dale, her husband, was riding in the front seat. Marks was driving north. The point of impact was in the east half of the roadway. The right front of the Pontiac came in contact with the left front of the Ford. After the collision the Ford was facing somewhat to the northeast, partly off the pavement on the east side and the Pontiac spun around and came to rest facing northwesterly on the west side of the pavement. The black-top was 24 feet wide and there were wide, crushed-stone shoulders.
Patricia's version was that she was driving 45 to 50 miles per hour and that she saw Marks' car when it was four or five city blocks away. She did not then know which side of the road it was on. When it was around two city blocks from her she noticed it was on her side of the road. She blew her horn several times and let up on the accelerator. Until the cars were about 75 or 100 feet apart she continued to think that Marks would get onto his own side. She then swerved into the left lane to avoid hitting him and when she swerved, she could see his headlights on her right side and then the collision occurred. She thought that when she swerved to the left, she had slowed down to 30 or 35 miles per hour. Dale was asleep and did not see what happened nor hear the horn.
Marks' version was that he was driving 45 to 50 miles per hour on his right side of the center line; that he saw the Le May car and it was on its right side until the cars were about 100 feet apart. Then the Le May car started veering toward the center line and came into his lane. He pulled to the right a little bit, did not sound his horn, but pulled his foot off the accelerator, touched the brakes, then put them on hard. Then the impact occurred.
The only item of damages which we are asked to review is the allowance for permanent injury to Dale's left leg. His thigh was broken. The fracture was treated by inserting a 15-inch rod in the bone canal, but the rod had been removed before the trial. One small piece of bone had been broken loose, and this was fastened in place by a screw approximately one inch long. It will remain permanently. Dale's doctor testified that he has about 10 degrees loss of flexion at the hip and this will be permanent. Ten degrees is less than 10 per cent loss. There is about 10 degrees limitation in bending the left knee as compared with the right, but the doctor could not say that it would be permanent. There are four or five scars along the thigh, well healed and not tender. Dale was twenty-five at the time of trial. Both before the accident and at the time of trial he was employed at the same tire-recapping job, at the same rate of pay. The limitation of motion does not affect his ability to perform this work.
The jury found Marks causally negligent with respect to operating his automobile on the west half of the roadway and with respect to lookout; found Patricia not negligent with respect to lookout but causally negligent with respect to management and control. It attributed 60 per cent of the total causal negligence to Marks and 40 per cent to Patricia. In addition to other items of damages the jury assessed damages for permanent injury to Dale's left leg at $6,000.
On motion of Marks and Rural Mutual in the Dale Le May case, the court concluded that the award of $6,000 for permanent injuries was excessive by $2,000 and gave an option to Marks and Rural Mutual to permit judgment to be taken against them accordingly or to have a new trial as to damages for Dale's personal injuries only. Patricia and Maryland Casualty not having moved for a new trial in that case, the court did not give them the same option. Marks and Rural Mutual elected to permit judgment in the reduced amount and on October 15, 1956, judgment was entered in favor of Dale Le May and against Marks, Rural Mutual, Patricia, and Maryland Casualty for $11,881.35, plus costs but limited as to Maryland Casualty to $10,000 plus costs and as to Marks and Rural Mutual to $9,881.35 plus costs (reflecting the $2,000 reduction). This judgment provided for contribution between Marks — Rural and Patricia — Maryland up to one half of the amount of the judgment against Marks and Rural Mutual. Patricia and Maryland Casualty appealed from the part of this judgment providing for their joint liability to Dale Le May and for contribution. Dale Le May requests review of the court's reduction of his damages. Marks and Rural Mutual ask for review of the form of the court's submission of question 9 of the special verdict.
On October 18, 1956, judgment was entered in favor of Patricia and against Marks and Rural Mutual for 60 per cent of the damages awarded to her. Marks and Rural Mutual appealed from that part of this judgment which awarded damages to Patricia, and Patricia asks for review of the trial court's refusal to find Marks 100 per cent negligent as a matter of law.
Case No. 11:
Patricia Le May and Maryland Casualty assert as a matter of law that Patricia was faced by an emergency not brought about by any negligence on her part; that she exercised the choice that a person of ordinary prudence might make and therefore was not negligent. If true, it would follow that in Patricia's case she would be entitled to judgment for the full amount of damages awarded by the jury and that in Dale's case, Patricia and Maryland Casualty would be relieved from liability to Dale and for contribution. The portions of Dale Le May's damages which represented damage to his car and medical expenses for treatment of Patricia were reduced in accordance with the finding of negligence on her part. Dale has not, however, sought review of the judgment in this regard.
Patricia was found by the jury not to have been negligent as to lookout and there is no evidence of negligence as to speed. She reduced her speed as Marks approached and she blew her horn. She could probably have applied her brakes and swerved toward the west shoulder, but she was entitled to the assumption that Marks would return to his own side. Havens v. Havens (1954), 266 Wis. 282, 288, 63 N.W.2d 86. There were no facts to warn her that Marks' car was out of control such as were present in Auster v. Zaspel (1955), 270 Wis. 368, 372, 71 N.W.2d 417, and Laughnan v. Aetna Casualty Surety Co. (1957), ante, pp. 113, 120, 83 N.W.2d 747, nor was there the interval of space and time within which those cases held there could be negligence in proceeding toward danger. We consider that once the jury had eliminated the possibility that Patricia was negligent as to lookout, and had determined that Marks was on the wrong side of the highway, the Havens Case became applicable, and under its doctrine Patricia was not negligent as to management and control.
Dale Le May asserts that the jury's award of $6,000 for permanent in jury to his left leg was sustained by the evidence. Reviewing the evidence in the light most favorable to him, his permanent injury consists of several scars on his thigh which were not described except as to size and location, the presence of a screw fastening a small fragment of bone to the main portion, and limitation of motion at the hip of 10 per cent. Limitation at the knee and weakness in the leg as compared to the right were both expected to improve. It was conceded that such limitation as there was had no adverse effect on his ability to perform his work. The court, as well as the jury, heard the evidence and observed him. The court concluded that the award of $6,000 was not supported by the evidence and that $4,000 was the largest amount a fair and impartial jury, properly instructed, would probably award for the permanent injury. Upon our review of the record, we cannot say that the circuit court was wrong.
Question 9 of the special verdict inquired whether Patricia was negligent with respect to operating her automobile on the east half of the roadway. The jury was instructed to answer that question only if it found in answering question 1 that Marks was not negligent with respect to operating his automobile on the west half of the roadway. Applying the emergency doctrine, as we do, once the jury found that Patricia was not negligent as to lookout and found that Marks was on the wrong side of the highway, an affirmative answer to question 9 could not have stood, if made.
Because of our conclusion that there can be no judgment against Patricia and Maryland Casualty, it is unnecessary to consider whether the court should have given them the benefit of the reduction in Dale's damages.
By the Court. — In the action in which Dale Le May is plaintiff, the judgment in favor of plaintiff and against Marks and Rural Mutual is affirmed; the judgment in so far as it is against Patricia Le May and Maryland Casualty Company is reversed, and the cause remanded with instructions to dismiss the complaint and cross complaint in so far as they assert causes of action against Patricia Le May and Maryland Casualty Company. In the action in which Patricia Le May is plaintiff, the judgment is reversed, and the cause remanded with instructions to grant judgment in her favor for the full amount of her damages as found by the jury, together with costs.