Summary
reversing a new trial order granted "in the interest of justice" that was based on an "erroneous conception of the law," but suggesting that if the trial court "had granted a new trial in the interest of justice because he had determined that the jury's comparison of negligence was against the great weight and clear preponderance of the evidence," the supreme court would have affirmed the order
Summary of this case from Sensenbrenner v. St. Paul Insurance Co.Opinion
April 6, 1955 —
May 3, 1955.
APPEAL from an order of the county court of Polk county: CHARLES D. MADSEN, Judge. Reversed.
For the appellants there was a brief by Louis G. Nagler of St. Croix Falls, attorney, and Byrne, Bubolz Spanagel of Appleton of counsel, and oral argument by Edward J. Byrne.
For the respondents there was a brief by Lawrence P. Gherty of Hudson, and Earl Nelton of Balsam Lake, and oral argument by Mr. Gherty.
Action by Myril Schill (also known as Muriel Schill) and Vern Schill, her husband, against Verda Meers, M. C. Meers, her husband, and Integrity Mutual Casualty Company (the Meers' insurance carrier) to recover damages for personal injuries and property damage arising out of a motor vehicle collision; and a separate action by Mr. and Mrs. Meers against Mr. and Mrs. Schill and Home Mutual Insurance Company (the Schills' insurance carrier) to recover damages for personal injuries and property damage arising out of the same collision. The two actions were consolidated for purposes of trial.
The collision occurred at about 7:30 a. m. on May 13, 1953, at a right-angle intersection of two town roads, one running in an easterly and westerly direction, and the other in a northerly and southerly direction. The two automobiles which collided at such intersection were driven by Mrs. Schill and Mrs. Meers, the Schill vehicle proceeding in an easterly direction and the Meers car in a southerly direction. Mr. Schill was a passenger in the Schill vehicle and Mr. Meers was a passenger in the Meers car.
The northwest corner of the intersection is obstructed by a high bank, a public-utility pole, and a tree, so that the bumper of a southbound car approaching the intersection would have to reach approximately the north edge of the east-west road before the driver could see westerly along such east-west road. Both roads are generally level near the intersection, except that the east-west road rises slightly to the crest of a knoll about 386 feet west of the intersection. On the day of the accident the weather was clear and the roads were dry.
Mrs. Meers testified: She was driving in a southerly direction toward the intersection at a speed of about 30 miles per hour, but slowed down as she got closer to the intersection, and some distance back therefrom she shifted into second gear and applied the brakes. She did not come to a complete stop, but believes that she slowed down to about two to three miles an hour as she proceeded into the intersection. She did not see the approaching Schill automobile until her husband exclaimed: "My God, she's coming right at us!" which exclamation was made when she was practically through the intersection. The Schill car struck the Meers automobile at about the middle of the right side. On adverse examination before trial, Mrs. Meers testified that she was going over 15 miles per hour as she came to the intersection; and on the day of the accident she had told a traffic officer that she was traveling 30 miles per hour at the time of the accident.
The testimony of Mrs. Schill was as follows: She was driving easterly toward the intersection at a speed of between 30 to 35 miles per hour, and when she was about two or three car lengths west of the intersection she saw the southbound Meers car "pop" into the intersection from behind the bank. She thereupon threw her car into second gear and thinks she stepped on the brakes. It seemed to her that the collision took place right in the middle of the intersection.
A traffic officer established the point of collision as the result of marks on the pavement and measurements made by him as being 3 feet 6 inches north of the south edge of the traveled portion of the east-west road. He also measured skid marks made by the Schill car which extended back westerly 54 feet from the point of collision.
The action was tried to the court and jury and the jury returned a special verdict wherein they found both drivers causally negligent as to lookout and management and control and attributed 60 per cent of the total aggregate negligence to Mrs. Meers and 40 per cent thereof to Mrs. Schill. The verdict also contained the following question (No. 9): "Did the two cars in question approach or enter the intersection at approximately the same time?" which the jury answered "No." Such question was followed by a pair of questions (Nos. 10 and 11), the first of which inquired as to whether Mrs. Meers was negligent in failing to yield the right of way, and the second was the accompanying proximate-cause question; but neither of these was answered by the jury because the verdict was so worded that they were only to be answered in the event the jury answered the preceding question (No. 9) "Yes."
Mr. and Mrs. Schill moved for judgment upon the verdict for 60 per cent of the amount of their damage as determined in the verdict. Mr. and Mrs. Meers and their insurance carrier moved the court to change certain answers in the verdict and to render judgment in their behalf upon the verdict as so changed, and, in the alternative, for a new trial on the grounds: (1) That the findings of the jury showed perversity and were inconsistent and contrary to the overwhelming weight of the evidence; (2) the verdict was contrary to law; and (3) because justice had not been done.
The trial court in passing on the motions after verdict filed a memorandum decision in which he reviewed some of the pertinent evidence and concluded with this statement:
"That although the Meers were guilty of negligence, the finding that their negligence contributed 60 per cent to the accident was inconsistent to the finding that they had the right of way, and that the apportionment of the negligence should have placed more than 50 per cent of the negligence on Mrs. Schill in view of their answer to this question.
"The court also feels that the question of the negligence of Mrs. Schill to yield the right of way and its causal connection with the cause of the accident should have been properly submitted to the jury and for these reasons the court feels that there should be a new trial in this matter.
"Attorney for the Meers may draw an order for a new trial."
An order for a new trial was entered under date of August 4, 1954, denying all motions after verdict of the parties, except that of Mr. and Mrs. Meers and their insurance carrier for a new trial, which latter motion was granted. The following grounds were assigned in said order for granting such new trial:
"1. Because the answers of the jury to the questions therein, are inconsistent in the following respects: The jury by its answer to question 9 of the special verdict found that the two automobiles in question did not approach or enter the intersection at approximately the same time, and by their answer to questions 10 and 11 of the special verdict, made no finding that the plaintiff Verda Meers was negligent in respect to yielding the right of way. That it appears from all the credible evidence that plaintiff Verda Meers was well into the intersection at the time that the driver of the other car, Muriel Schill, approached the intersection, and that said Verda Meers had gained the intersection first and that by reason thereof the apportionment of negligence answered by the jury at question 12 is inconsistent and contrary to law.
"2. Furthermore, there was an omission to submit the question as to the negligence of Muriel Schill in failing to yield the right of way and as to causal connection of such failure with the accident.
"3. As a further reason for setting aside the verdict and granting a new trial, it is determined that there should be a new trial in the interest of justice because upon all the credible evidence introduced at the trial, it is determined that the negligence of plaintiff Verda Meers did not contribute as much as 50 per cent of the combined negligence which caused the accident of the parties concerned."
From such order granting a new trial, Mr. and Mrs. Schill and their insurance carrier have appealed to this court.
It is clear from the memorandum decision and order for a new trial that the learned trial court held the erroneous view that, where two automobiles approach an intersection on separate highways but not at approximately the same time, and the driver from the left enters the intersection first, the driver coming from the right owes a duty to yield the right of way.
The law on this point was clarified beyond all doubt by the able opinion of Mr. Justice WICKHEM in Reynolds v. Madison Bus Co. (1947), 250 Wis. 294, 26 N.W.2d 653. We quote from the opinion in that case as follows (pp. 303, 305):
"On the basis of the foregoing authorities it must be held that there are no rights of way at intersections other than those contained in sec. 85.18, Stats. . . .
"If, however, the two cars are not approaching the intersection at approximately the same time and there is therefore no statutory duty on one or the other to yield the right of way, the negligence of either or both in proceeding into the intersection may frequently as in other situations involving general negligence be considered to be part and parcel of some other item of negligence such as negligent lookout."
Sec. 85.18 (1), Stats., provides as follows:
" Right of way at intersections. When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise provided in this section. The driver of any vehicle driving at an unlawful speed shall forfeit any, right of way which he might otherwise have hereunder. The driver of a vehicle approaching but not having entered an intersection shall yield the right of way to a vehicle within such intersection and turning therein to the left across the line of travel of such first-mentioned vehicle; provided, the driver of the vehicle turning left has given a plainly visible signal of intention to turn as aforesaid."
Under such statute the driver approaching from the left never acquires a right of way as against the driver approaching from the right except in the special situation coming within the provisions of the last sentence of the statute applying to left turns. Such exception has no application to the case at bar. Even where the vehicle approaching from the right is traveling at an excessive speed and forfeits the right of way by reason thereof, the driver from the left does not gain the right of way so forfeited.
The trial court, therefore, arrived at an erroneous conclusion in stating in in the memorandum decision that the jury had found that Mrs. Meers had the right of way because of answering question No. 9 "No," which inquired as to whether the two vehicles approached or entered the intersection at approximately the same time. This erroneous hypothesis led to the further incorrect conclusion that such answer "No" to question No. 9 was inconsistent with the answer to the comparative-negligence question whereby 60 per cent of the aggregate negligence was attributed to Mrs. Meers. There was no inconsistency in the verdict, nor was any error committed in failing to submit a question as to whether Mrs. Schill was negligent in failing to yield the right of way. It would have been error to have submitted such a question.
This disposes of two of the three grounds assigned in the order appealed from for granting a new trial. There remains to be considered the third reason given in such order, viz., that a new trial was necessary in the interest of justice because "it is determined that the negligence of plaintiff Verda Meers did not contribute as much as 50 per cent of the combined negligence which caused the accident."
When a trial court grants a new trial in the interest of justice pursuant to sec. 270.49 (2), Stats., and the order therefor sufficiently sets forth the reasons which prompted the court to take such action, this court will not disturb such order in the absence of a clear abuse of judicial discretion. Alexander v. Meyers (1952), 261 Wis. 384, 386, 52 N.W.2d 881; and Kies v. Hopper (1945), 247 Wis. 208, 211, 19 N.W.2d 167. There are sound policy reasons in support of such rule. As Mr. Chief Justice ROSENBERRY well stated in his opinion in Sichling v. Nash Motors Co. (1932), 207 Wis. 16, 21, 238 N.W. 843:
"We have frequently commented upon the highly discretionary character of an order granting a new trial in the interest of justice. The exercise of this discretion is the only thing that stands between the litigant and judgment upon an unjust verdict under our system of jurisprudence."
It is in the discretion of the trial judge to grant a new trial in the interest of justice when he is convinced that the verdict is against the great weight of the evidence. Olson v. Elliott (1944), 245 Wis. 279, 280c, 14 N.W.2d 1, 15 N.W.2d 37; and Guptill v. Roemer (1955), ante, p. 12, 68 N.W.2d 579, 69 N.W.2d 571.
If, in the instant case, the trial court had granted a new trial in the interest of justice because he had determined that the jury's comparison of negligence was against the great weight and clear preponderance of the evidence, and there was nothing in the record to indicate such conclusion was based upon an erroneous view of the applicable law, on the basis of the authorities hereinbefore cited we could not hold that there had been an abuse of discretion which would authorize us to reverse. However, we cannot escape the conclusion that the same erroneous conception of the law on the subject of right of way which permeated the memorandum decision of the trial court, and was reflected in the assignment of the first two erroneous grounds for granting a new trial set forth in the order, carried through and prompted the inclusion of the third and last ground listed in the order, viz., that the interest of justice required a new trial. In other words, it seems clear that the only reason that the trial court concluded that Mrs. Meers' acts of negligence could not have contributed as much as 50 per cent of the aggregate negligence of both drivers, was such erroneously held view that there was a duty on the part of Mrs. Schill to have yielded the right of way to Mrs. Meers. We are strengthened in this conclusion by the fact that the memorandum decision makes no mention of granting a new trial in the interest of justice, and that the order does not state any reason why the trial court determined that the jury's comparison of negligence was against the weight of the evidence, other than that the jury had not been required to take into consideration the alleged failure of Mrs. Schill to have yielded the right of way.
Where, as here, a new trial has been ordered in the interest of justice, and the record discloses that such granting of the new trial was based upon an erroneous view of the law by the trial court, such order constitutes an abuse of discretion. Crombie v. Powers (1930), 200 Wis. 299, 301, 227 N.W. 278.
By the Court. — Order reversed, and cause remanded with directions to reinstate the verdict and enter a judgment thereon in behalf of appellants Myril Schill and Vern Schill against respondents Verda Meers and Integrity Mutual Casualty Company not inconsistent with this opinion.