Opinion
April 7, 1958 —
May 6, 1958.
APPEAL from orders of the circuit court for Waukesha county: ALLEN D. YOUNG, Circuit Judge. Affirmed.
For the appellant there were briefs by Lowry Hunter and Schober Radtke, and oral argument by Willis J. Zick and Jack A. Radtke, all of Waukesha.
For the respondent there was a brief by Rosenbaum Rosenbaum of Milwaukee, and oral argument by Ralph K. Rosenbaum, Jr.
For the interpleaded respondent there was a brief and oral argument by Richard S. Hippenmeyer of Waukesha.
On April 10, 1954, Millicent Odya brought action against Donald Quade. Mrs. Odya sought to recover damages for personal injuries sustained November 1, 1953. She alleged that she was a passenger in an automobile operated by her husband, Eugene, when it collided with an automobile driven by Quade. Milwaukee Automobile Insurance Company had insured Mrs. Odya, who owned the car, and it was interpleaded. Quade filed a cross complaint against it for his own damages for personal injuries.
The collision occurred shortly before one o'clock a. m., at a curve in Highway 15 near the west edge of the unincorporated village of New Berlin. The highway runs approximately northeast and southwest. Quade was driving southwest in a Chevrolet. Mr. and Mrs. Odya were in a Plymouth, heading northeast. The curve was toward the left for the Odyas and toward the right for Quade. There was a posted speed limit of 35 miles per hour.
Odya died after being taken to the hospital; Mrs. Odya could not remember any event later than the previous afternoon; and Quade could not remember the impact. Quade testified that he was picking up speed after coming through the village and was traveling 40 to 45 miles per hour in his own lane. He was just on the curve when he first saw the Odya car, four or five car lengths away from him. He testified that Odya's lights "were very bright blinding lights;" that he remembered slowing up and reaching for the brake; that he didn't remember a thing after that. A deputy sheriff testified that he talked with Quade at the scene of the accident and that "he said he couldn't recall much except that he was traveling west on Highway 15 at approximately 45 miles an hour and remembers of meeting another car with bright lights and became confused and didn't know exactly where he was at the time of the impact."
Photographs taken about an hour after the collision, one of which is herewith reproduced, showed the cars with their fronts severely damaged, the left front of each in contact with the left front of the other; the right rear wheel of the Odya car was on Odya's right-hand shoulder; the other wheels were in Odya's own lane, on the pavement, and the car was facing at an angle into the highway; the right rear wheel of the Quade car (license No. C99-513) was in Quade's own lane and the other three wheels were in Odya's lane; the Quade car was facing the Odya car. A deputy sheriff testified that the left front corner of the Odya car was approximately six feet south of the center line. He and another deputy testified there were no skid marks or tire marks and that the debris was under the cars where they came to rest.
Except for the special damage questions answered by the court, the special verdict read as follows:
"Question 1: At the time of and just prior to the collision did the defendant, Donald Quade, invade the south half of the highway?
"Answer: No. [One dissenting juror.]
"Question 2: If your answer to question 1 is `Yes,' then answer this question: Was the defendant, Donald Quade, negligent in invading the south half of the highway?
"Question 3: If your answers to questions 1 and 2 are `Yes,' then answer this question. Was such negligence on the part of the defendant, Donald Quade, an efficient cause of the collision?
"Question 4: At the time of and just prior to the collision was the deceased, Eugene Odya, negligent in the operation or maintenance of his headlamps?
"Answer: Yes.
"Question 5: If your answer to question 4 is `Yes,' then answer this question: Was such negligence on the part of the deceased, Eugene Odya, an efficient cause of the collision?
"Answer: Yes.
"Question 6: If your answers to question 3 and question 5 are `Yes,' then answer this question, otherwise do not answer it: Attributing 100% of the negligence to the collision, what percentage of the negligence do you attribute to:
"(a) Donald Quade Answer: 0
"(b) Eugene Odya Answer: 100%
"Question 7: Answer this question without regard to how you answered the previous questions: What sum of money will reasonably and fairly compensate the plaintiff, Millicent Odya, for the following: . . .
"(b) Pain and suffering?
"Answer: $750. [Two dissenting jurors.]
"(c) Permanent disability.
"Answer: None.
"Question 8: Answer this question without regard to how you answered the previous questions: What sum of money will reasonably and fairly compensate the defendant, Donald Quade, for the following: . . .
"(c) Pain and suffering?
"Answer: $3,500.
"(d) Permanent disability?
"Answer: $18,000."
The record shows that the jury originally returned its verdict with the figure zero as the answer to both subdivisions (b) and (c) of question 7. After discussion in chambers and objection by plaintiff and the interpleaded defendant to sending the jury back to consider question 7, the court said to the jury: "I am going to send you back to your jury room and I want you to read question 7 over carefully, and if that is your verdict, let it as it is." The jury returned after an hour and twenty-seven minutes, having changed the answers so that the verdict read as above set forth.
On motions after verdict, the court filed an opinion which read as follows:
"There is no testimony to sustain the answer to the first question of the special verdict, there is no testimony as to where the accident happened, there were no skid marks or other marks on the pavement, except that the jury might infer from the debris on the south side of the road that the accident happened on the south side of the road. There was also a presumption that the deceased driver of the plaintiff's car acted with due care, and if the court was to change the answer to the first question from `No' to `Yes,' it would be necessary that the second and third questions of the verdict be answered by the jury. There was testimony that the plaintiff suffered permanent injury yet the jury found no damage.
"The court is of the opinion that the verdict is inconsistent, prejudicial, and perverse; and it is, therefore, ordered that the verdict be set aside and a new trial granted."
On July 12, 1957, the court entered an order granting a new trial "in the interest of justice for the reasons set forth in the written opinion of the court, which is made a part of this order by reference; because of errors in the trial; because the verdict is contrary to law and the evidence; and because the verdict is perverse and reflects bias and prejudice of the jury." The same order denied the other motions made by the parties. On July 30, 1957, the court entered an order denying a motion by Quade that it reconsider its order granting a new trial. Quade appealed from both orders.
Plaintiff asked for a review of a number of rulings of the court during the trial and on motions after verdict; interpleaded defendant asked for review of substantially the same rulings and of denial of certain motions for dismissal of the cross complaint.
Further facts will be referred to in the opinion.
Appellant asserts that none of the reasons given by the court is sufficient for a new trial. The interpleaded defendant contends that the cross complaint against it should have been dismissed because there is no evidence of causal negligence on the part of Odya. It and the plaintiff contend that in any event there were errors upon the trial which warranted a new trial.
Our analysis of the record leads us to the following conclusions:
(1) The evidence considered in the light of the presumptions applicable to drivers deceased or suffering from retrograde amnesia established that the collision occurred on Odya's side of the center line. There was a presumption that Odya operated plaintiff's car on his own side of the road. There was no evidence tending to show that the Odya car was ever on the wrong side of the road and thus the presumption in his favor remained in force on that issue. There was also a presumption that Quade was on his own side of the road at and just prior to the time of collision during the interval which he could not remember. The position of the cars after the collision was evidence from which the inference that Quade negligently invaded Odya's side of the road could be drawn. Mackowski v. Milwaukee Automobile Mut. Ins. Co. (1957), 275 Wis. 545, 551, 82 N.W.2d 906. Accordingly, the presumption in favor of Quade on this issue dropped out of the case. Atkinson v. Huber (1955), 268 Wis. 615, 618, 68 N.W.2d 447.
(2) There was a jury question whether Quade was negligent with respect to lookout. Quade testified that when he first saw the Odya car, it was about four or five car lengths away from him. This would show that he did not see the Odya car at his earliest opportunity unless the failure to see was adequately explained. The fact that there was a curve and Quade's testimony that there were "a couple big trees there and a row of mailboxes" did not establish even prima facie that Quade could not have seen the Odya car when the cars were more than four or five car lengths apart and left the issue of lookout unresolved.
(3) There was no substantial jury issue as to Quade's negligence with respect to management and control independent of the question whether he was negligent in being on the wrong side of the road. In view of the short intervening distance when Quade first saw Odya, the only question in the field of management and control was whether he negligently went to the wrong side of the road or negligently remained on the wrong side (if the jury disbelieved his testimony that he was on the right side to begin with).
(4) Quade was negligent with respect to speed as a matter of law. There was a jury question whether such negligence was a cause of the collision. Excessive speed on the part of a driver approaching a right-hand curve may be found to have caused him to swing over the center line and into the left lane as he rounded the curve. Mackowski v. Milwaukee Automobile Mut. Ins. Co., supra, page 552.
(5) There was a jury question as to Odya's negligence with respect to headlights. Quade's testimony as to Odya's lights was a sufficient basis for a jury finding that Odya failed to dim, depress, or tilt the headlamps so as to distribute the light therefrom so that the glaring rays were not directed into Quade's eyes. (Sec. 85.06(16), Stats. 1953.) Appellant has cited several cases from other jurisdictions holding that similar testimony is enough to create a jury issue as to dimming of lights. Keseleff v. Sunset Highway Motor Freight Co. (1936), 187 Wn. 642, 651, 60 P.2d 720, 724 (testimony that the lights of the oncoming car were "`bad and branching out in every direction.'"); Guinou v. Webster (1933), 132 Cal.App. 29, 31, 22 P.2d 231, 232 (testimony that plaintiff was blinded by defendant's lights); Stammerjohan v. Sims (1948), 72 S.D. 189, 192, 31 N.W.2d 449, 450 (testimony that "`it seemed to me like his lights were very bright. . . . it seemed that his car turned towards me and his lights shone directly into my windshield and blinded me. . . .'"); Bell v. Lewis (1946), 74 Ga. App. 26, 30, 38 S.E.2d 686, 689 (testimony that "`The truck had bright lights and never dimmed them. . . . They blinded me where I couldn't see.'").
Because of Quade's testimony as to Odya's lights the presumption that Odya exercised due care in that respect dropped out of the case.
(6) There was a jury question whether Quade was negligent in being upon Odya's side of the road just prior to the time of collision. If the jury found that Quade's excessive speed was not a cause of his swinging onto the left side of the road and if the jury found, as Quade testified, that Quade was on his right side until he first saw the Odya lights, the jury might then have found that Quade was not negligent with respect to invading Odya's side of the road if it found that Odya's glaring lights so completely blinded Quade that it was utterly impossible for him to see where he was going and entirely beyond his power to know that he was veering to the left side of the road. "While the law requires the driver of an automobile to keep to the right when meeting another vehicle, one cannot be held guilty of negligence in unconsciously failing to do so where that is impossible by reason of circumstances over which he has no control and for which he is in no sense responsible." Johnson v. Prideaux (1922), 176 Wis. 375, 378, 187 N.W. 207.
In the light of the foregoing conclusions we now consider the specific questions raised by the parties:
(1) The court stated in its opinion, later incorporated in its order, that it was granting a new trial because the verdict is "inconsistent, prejudicial, and perverse" and pointed to the jury's negative answer to the first question and its finding of no damages by reason of permanent injury to plaintiff. The jury, in effect, found that Odya failed to dim, depress, or tilt his headlamps. The jury made two inconsistent findings, that Odya's failure to dim his headlamps caused the collision and (in effect) that Quade stayed on his own side of the road. The jury did not reach the question of whether Quade was negligent in being on Odya's side of the road. Even if there were no other issues which should have been submitted to the jury, the order for a new trial would have to be affirmed because of the inconsistency. As indicated in this opinion, the court should have answered question 1 or else instructed the jury that it had been established that Quade was on Odya's side of the road at and just prior to the time of collision and not have submitted question 1.
In its order granting a new trial the court stated that the "Verdict is perverse and reflects bias and prejudice of the jury." It has been held that a jury's violation of instructions by not answering damage questions in a verdict where they have answered other questions so as to determine that there is no liability does not compel a trial court to treat the verdict as perverse. Parmentier v. McGinnis (1914), 157 Wis. 596, 147 N.W. 1007; London G. A. Co. v. Great Northern R. Co. (1928), 197 Wis. 241, 248, 221 N.W. 762; Frings v. Donovan (1954), 266 Wis. 277, 282, 63 N.W.2d 105. An order granting a new trial on the ground of perversity has been reversed where based on a failure to answer damage questions. Goelz v. Knoblauch (1943), 242 Wis. 186, 7 N.W.2d 420. Because of the opportunity the trial court has to observe the trial and to sense any atmosphere of prejudice, we have some doubt about the soundness of the Goelz decision. Because, however, there must be a new trial in this case upon several other grounds, it is not necessary to consider the matter of perversity in this case.
(2) As has already been pointed out there was evidence to support a finding that Odya failed to dim or depress his headlamps and a finding that such failure was a cause of the collision. Hence the trial court correctly refused to dismiss
(3) Respondents objected to the testimony of Mrs. Lois Banda. She testified that she was a nurses aide at Waukesha Memorial Hospital at the time of the accident. She had worked there during the summer of 1952 and had worked continuously since June of 1953. She was eighteen years old. When Odya and the other injured people were brought in, she was assigned to stand next to the cart on which Odya was placed to guard against his rolling off. She was with him for one half or three quarters of an hour and talked with him. She testified, "There seemed to be a heavy odor of alcohol to his breath . . . his speech appeared to me to be slurred, and he kept repeating the same things over and over again."
She was permitted to testify over objection that she was of the opinion that Odya was under the influence of alcohol. She also testified that she had seen between eight and twelve patients in shock and was familiar with the symptoms; that so far as she could tell none of his conduct was based upon any state of shock he may have been in at that time although she also testified that he went into a state of shock between twenty minutes and one-half hour after he was brought in.
"Numerous cases may be found which hold, in substance, that no particular scientific knowledge is required to recognize whether a person is in a drunken or intoxicated condition, and that a lay witness, who has the opportunity to observe the facts upon which he bases his opinion, may give his opinion whether a person at a particular time was or was not intoxicated." Kuroske v. Aetna Life Ins. Co. (1940), 234 Wis. 394, 404, 291 N.W. 384. Accordingly, Mrs. Banda was competent to state her opinion that Odya was under the influence of liquor. Her brief experience as nurses aide, however, did not in our opinion qualify her to state an opinion that Odya's conduct which she observed was not caused by shock.
Testimony that Odya was under the influence of alcohol was not evidence from which it could be inferred that he drove on the wrong side of the road and accordingly, was not material on that issue. There being other evidence, however, that he failed to dim his headlights, the testimony that he was under the influence of alcohol could properly be considered along with the other evidence upon that issue. Frey v. Dick (1956), 273 Wis. 1, 76 N.W.2d 716.
(4) The court should have submitted questions inquiring whether Quade was negligent with respect to lookout, whether such negligence, if found, was causal and whether his negligence with respect to speed was causal. Failure to submit these questions was also a sufficient basis for a new trial.
(5) Objection was made to the form of the question with respect to Odya's lights. The form of the question was not error, the court having instructed the jury as to the terms of the applicable statute. It appears to us, however, that it would have been better to have framed the question by using the substance, at least, of the language of the statute.
(6) Our attention was called to an instruction that "the defendant has testified that he was on his side of the road prior to the collision and there will be a presumption that that continued until it was proved to the contrary." This instruction should not have been given. The evidence permitted only one finding with respect to the place of occurrence of the collision. Quade's testimony that he was on his own side of the road prior to the interval which he does not remember, does not rebut the presumption that Odya remained on his own side of the road.
By the Court. — Orders affirmed.
HALLOWS, J., took no part.