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In Liebmann v. Busolacchi, supra, footnote 6, at page 696, the court favorably quoted 88 C.J.S., Trial, p. 573, sec. 245: "In order to avoid a nonsuit the evidence of plaintiff must be sufficient to raise more than a mere surmise or conjecture that the fact is as alleged.
Summary of this case from Trogun v. FruchtmanOpinion
No. 245.
Argued October 7, 1971. —
Decided November 2, 1971.
APPEAL from a judgment of the county court of Milwaukee county: ELLIOT N. WALSTEAD, Judge. Reversed.
For the appellants there were briefs by Ames, Riordan, Crivello Sullivan, attorneys, and Robert D. Sullivan and Wallace P. Barlow, Jr., of counsel, all of Milwaukee, and oral argument by Robert D. Sullivan.
For the respondent there was a brief by Schneider Tammi of Milwaukee, and oral argument by Walter M. Tammi.
Action to recover damages for the wrongful death of Alois Liebmann. The action was brought by Frank Liebmann, special administrator, respondent, against August T. Busalacchi and his employer, Transamerican Freight Lines, Inc., defendants, and the city of Milwaukee and its insurer, The Travelers Indemnity Company, appellants.
On July 5, 1968, Alois Liebmann suffered fatal injuries when he was run over by a truck at the intersection of South Kinnickinnic Avenue and East Lincoln Avenue in the city of Milwaukee. The evidence indicates that Mr. Liebmann, after transacting business at Kinnickinnic Federal Savings Loan Association, started to cross South Kinnickinnic Avenue. He was not able to proceed directly across the street, however, inasmuch as a city of Milwaukee maintenance truck was parked across the crosswalk. There was an open space about 15 feet in length directly in front of this truck. City employees, operating from the truck, were repairing an electrical box located beneath the sidewalk at the intersection. Wooden horses had been placed as barricades to form a passage around the back of the city truck to enable pedestrians to go around the truck without entering the stream of traffic. Mr. Liebmann was seen standing on the curb near the back of the truck before he started to cross the street.
At that time, a 40-foot tractor-trailer, owned by Transamerican Freight Lines, Inc., and driven by August T. Busalacchi, was turning right from East Lincoln Avenue onto South Kinnickinnic Avenue. The turn had to be made slowly, since the barricades blocked off part of the street. The tractor-trailer made the turn without coming in contact with the barricades, the city truck or any cars stopped on the other side of the street. However, the rear wheels of the trailer passed over the lower portion of Mr. Liebmann's body. There were no eyewitnesses who were able to relate how the accident occurred.
At the time of death, Mr. Liebmann was seventy-nine years of age and retired. He walked with a cane; and because of an operation to remove a cataract from one eye, he wore glasses with thick lenses. He and his wife, aged eighty, were able to support themselves on social security benefits of $189.40 per month. For several months prior to this accident, his wife had been confined to a number of nursing homes or hospitals for treatment relating to a stroke she suffered in February of 1968. There was testimony that she was almost well enough to return home when the accident occurred, although she would have had to rely to a great extent on her husband to take care both of her and the household. She is now confined in a nursing home at a cost of $14 per day. Her social security benefits amount to $100 per month.
The jury attributed 10 percent of the causal negligence to Transamerican Freight Lines, Inc., 20 percent to Mr. Liebmann, and 70 percent to the city of Milwaukee. Damages were assessed at $28,771.12. The city appeals from the judgment on the verdict.
This appeal presents three issues:
(1) Did the trial court err in not granting appellants' motion for nonsuit at the close of plaintiff's case;
(2) Did the trial court err in instructing the jury on the statutes relating to vehicles parked in crosswalks; and
(3) Were the damages found by the jury excessive?
Motion for nonsuit.
At the close of the plaintiff's case in chief, appellants moved for a nonsuit, contending that there was insufficient credible evidence to show that the city was in any way negligent. The motion was denied.
A motion for nonsuit is equivalent to a demurrer to the evidence. Heritage Mut. Ins. Co. v. Thoma (1970), 45 Wis.2d 580, 585, 173 N.W.2d 717. When passing on such a motion, the court must view the evidence in a light most favorable to the plaintiff; and, if there is any credible evidence or any inferences which might reasonably be drawn therefrom which supports a cause of action, the motion must be denied. Styczinski v. Styczinski (1967), 36 Wis.2d 36, 40, 152 N.W.2d 865.
The evidence herein shows that the city truck was parked so as to completely block the crosswalk. There was conflicting testimony on whether the city employees were on the scene or were in a restaurant nearby. For the purposes of reviewing this motion, they must be deemed to have been away from their work. When Mr. Liebmann was found, he was entirely within the crosswalk, approximately 12 feet from the corner. The truck could have been parked in the empty space just south of the crosswalk, leaving the walk clear, but necessitating the use of a wheelbarrow to convey the concrete to and from the truck.
No one saw the actual accident. Therefore, there was no testimony as to Mr. Liebmann's movements from the time he was last seen standing on the corner near the rear of the city truck until he was found lying in the street within the crosswalk.
The trial court, admitting that the case was very close, felt that the jury might be able to find negligence from the fact that the city employees may not have been working at the time the accident occurred. There was also a question in the judge's mind as to whether it was negligent to park the truck in the crosswalk when there was an open space immediately in front of the truck. Therefore, the trial court thought the matter presented a jury question and denied the motion.
This is an action for negligence. As such, it is incumbent upon plaintiff to prove that defendant city of Milwaukee failed to exercise that degree of care which would be exercised by a reasonable person under the same or similar circumstances and that such failure was a proximate cause of the damages suffered. Here, although negligence on the part of the city might be inferred, there was nothing to show that such negligence caused the accident. It is not known whether Mr. Liebmann walked in front or in back of the truck, so there is no evidence that his vision was blocked by the city truck. It is likewise not known whether the position of the truck prevented him from stepping back to avoid the Transamerican tractor-trailer, whether that truck knocked him down as he stood waiting for it to pass, or whether he slipped and fell under the wheels of the trailer. There was an accident, but how it occurred is unknown; the city might have been negligent, but how that negligence was causal is not established.
In 88 C.J.S., Trial, p. 573, sec. 245, it is stated:
"In order to avoid a nonsuit the evidence of plaintiff must be sufficient to raise more than a mere surmise or conjecture that the fact is as alleged. Accordingly, if, when plaintiff rests his case, the facts which were incumbent on him to establish appear from the evidence as merely possible, the court may or should grant a judgment of nonsuit; . . ."
We think that there is insufficient evidence in this case to raise anything more than a surmise or conjecture as to how the negligence of the city, if any, contributed to the happening of the accident. Therefore, the trial court should have sustained the motion for nonsuit.
Because the judgment must be reversed, we do not reach the remaining issues. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment pursuant to this opinion.