Opinion
September 7, 1960 —
October 4, 1960.
APPEAL from an order and a judgment of the municipal court of Outagamie county: OSCAR J. SCHMIEGE, Judge. Affirmed.
For the appellant there was a brief by Richard E. Peterson of Hortonville, attorney, and Urban P. Van Susteren of Appleton of counsel, and oral argument by Mr. Van Susteren.
For the respondent there was a brief by Benton, Bosser, Fulton, Menn Nehs, attorneys, and Peter S. Nelson of counsel, all of Appleton, and oral argument by Mr. Nelson and Mr. David L. Fulton.
Action to recover damages for personal injuries suffered in a collision between plaintiff's bicycle and a truck driven by one Phillips, insured by defendant against liability. Trial was to a jury. The jury found that plaintiff's causal negligence was greater than that of the truck driver. Judgment was given on the verdict dismissing the complaint. After verdict plaintiff moved for a new trial and appeals from the order denying his motion and from the judgment.
The accident happened shortly after noon on August 8, 1957, in a rural area that lies within the corporate limits of the village of Hortonville. The weather was misting.
County Trunk Highway M, which is called Oshkosh street in the village, is a black-top road running north and south. A police officer who made a diagram of the scene of the accident for the purpose of trial showed the road to be 19 feet, nine inches wide, and the officer who measured it on the day of the accident said it was 17 feet, four inches wide, explaining that at the point of impact the surfacing was broken at both edges. Baake street runs into Oshkosh street from the west at right angles to form a "T" intersection. It is an unimproved, gravel road measuring 11 feet, nine inches wide. There is a stop sign 16 feet, 11 inches west of the edge of the black-top. Looking south from the stop sign there is a clear view of Oshkosh street for a quarter of a mile. The center line of Oshkosh street is not marked by paint or otherwise.
At the date of the accident plaintiff was a minor, approximately twenty years of age. He lived on Baake street near its intersection with Oshkosh street. The collision took place somewhat south of the intersection and the two vehicles collided head on. The verdict absolved Phillips of negligence in lookout and in management and control of his truck but found him causally negligent in driving on the wrong half of the highway.
The verdict found the plaintiff was causally negligent in lookout, in riding his bicycle on the wrong half of the highway, in control and management, in failure to stop at the arterial, and in failure to yield right of way. Causal negligence was apportioned 65 per cent to plaintiff and 35 per cent to Phillips.
The facts will be given in the opinion.
Appellant's first challenge to the judgment is that the evidence does not sustain the answers of the verdict. It is axiomatic that the court must sustain them if there is any credible evidence to support them. Hoffman v. Buggs (1959), 6 Wis.2d 488, 489, 95 N.W.2d 237. Plaintiff Strong and defendant's assured, Phillips, differed in their versions of the accident but it is the function of the jury to choose between their accounts of the collision. Phillips' version is that he was driving north on Oshkosh street, on the right (east) half of the highway at a speed of 15 to 17 miles per hour when he saw Strong on Baake street riding his bicycle about to enter Oshkosh street. Phillips then testified that Strong came into the intersection without stopping at the stop sign and turned to go north on Oshkosh street. Soon after making this turn to the north, Strong appeared to lose control of his vehicle in loose gravel in the street and reversed his course and turned south. This turn brought him onto the east half of the highway. Strong was then riding on the pedals of the bicycle with his head down. Phillips then brought his truck to a stop in the east half of the road but Strong kept coming right at him and rammed head on into the truck. Strong went over the truck's left front fender and landed on the road near the truck's rear wheels.
Strong's version is that he turned south directly upon entering Oshkosh street and at all times stayed on the west half of the highway, but the truck was on that side also and was moving at a speed in excess of the speed limit. Strong admitted that he did not stop at the arterial, and he did not see the truck until he was only 100 to 120 feet from it.
From the foregoing testimony the jury could believe that a portion of the truck was west of the center of the road and the bicycle was east of it. Phillips' testimony by itself is sufficient to sustain each element of negligence of which the jury found Strong guilty. Therefore it is unnecessary for this court to search out and point out corroborating evidence. although corroboration is not absent from the record.
The appellant asserts that Phillips' testimony is made incredible by physical facts, by photographs, and by measurements taken by police officers soon after the accident. The parties differ in their interpretation of such facts. These were matters for argument to the jury. We cannot consider plaintiff's contentions were proved as matters of law. The resolution of these disputed facts must be left to the jury.
Appellant says that the verdict is inconsistent because the jury found each vehicle was on the wrong side of the road. There is no inconsistency in finding that a part of the truck extended onto its wrong side of the highway and at the same time the bicycle was also on its wrong side. There is testimony that each vehicle had come onto the wrong side and the jury could conclude that both did so.
Appellant also contends that there was duplicity in the verdict, such as by including in it the inconsistent negligences of lookout and management and control. If there was duplication, the objection to it was waived, as in Briggs Transfer Co. v. Farmers Mut. Automobile Ins. Co. (1953), 265 Wis. 369, 61 N.W.2d 305. There, at page 372, we said:
"If the appellants had made timely objection to the special verdict which questioned the jury both as to Medema's lookout and his management and control, we would have to hold that reversible error had been committed, as we did in Marchant v. Franz, supra. However, the special verdict was submitted to counsel before being given to the jury, and no objections were made to the inclusion of questions on both subjects. Under such circumstances appellants cannot take advantage of the error, but must be held to have waived it. Johnson v. Sipe (1953), 263 Wis. 191, 56 N.W.2d 852; Fondow v. Milwaukee E. R. T. Co. (1953), 263 Wis. 180, 56 N.W.2d 841; Nimits v. Motor Transport Co. (1948), 253 Wis. 362, 34 N.W.2d 116. Parties cannot participate in the submission of an improper verdict and then set it aside if the answers are unfavorable."
The same situation is presented here. If the form of verdict was objectionable, plaintiff did not preserve his objections to it. In the same way plaintiff failed to preserve any objection to the inclusion in the verdict of the cause question relating to plaintiff's failure to stop before entering the arterial.
In his motions after verdict appellant asks for a new trial in the interest of justice. Upon competent credible evidence the jury found plaintiff guilty of practically everything a cyclist could be guilty of — failing to stop at an arterial, riding his bicycle on the wrong side of the road, failing to yield the right of way, failure seasonably to see another user of the highway who was in plain sight, and in the management and control of his bicycle. We have considered plaintiff has waived his objections to the form of the verdict but even if we gave all possible weight to them we could not conclude the causal negligence of Phillips to be as great as that of Strong. The facts were thoroughly presented to the trial court and to the jury and no interest of justice will be served by a new trial.
Since the order and the judgment must be affirmed, there is no need to consider defendant's motion to review the damages found by the jury which defendant considers excessive.
Respondent has asked us to allow the costs of printing the portion of its brief which exceeds 50 pages. We consider the brief a very good one but we think a brief of 50 pages would have been adequate here. Its request is denied.
By the Court. — Order and judgment affirmed.