Opinion
No. 148.
Argued September 5, 1968. —
Decided October 1, 1968.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Sidney Spector of Milwaukee.
For the respondent there was a brief and oral argument by Harry J. Hayes, village attorney.
This is a forfeiture action wherein the defendant-appellant, Charles Hardtke, was adjudged guilty of a violation of the municipal code of Whitefish Bay which adopted, by reference, sec. 346.57 (2), Stats.
The statute reads as follows:
"REASONABLE AND PRUDENT LIMIT. No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. The speed of a vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care."
On November 10, 1966, at about 4 a. m., in the adjoining village of Shorewood, a police officer observed Hardtke traveling at a high rate of speed in a zone posted at 25 miles per hour.
The officer pursued Hardtke in a northerly direction on North Oakland avenue. He estimated that the defendant was traveling at a speed in excess of 40 miles per hour. Angling off to the left, defendant entered North Bartlett avenue which is in the village of Whitefish Bay. The officer lost sight of the defendant at this point, but within a minute and a block-and-a-half later he came upon the defendant's car, which was resting against a tree.
Evidence as to the length of the skid marks left by the defendant's car was admitted at the trial. The marks indicated that the car skidded 72 feet and struck one tree, continued another 28 feet to strike a second tree, and then traveled an additional 66 feet where it was stopped by a third tree. The car was damaged at both the front and at the rear.
The pursuing officer testified that although he did not see the accident he heard the sounds of crashing metal emanating from the direction of the accident.
The defendant described the highway conditions as "wet, leaf-strewn and dark." He testified, however, that at the time of the accident he was traveling only 25 miles per hour; that he came upon a pile of wet leaves which were at first indistinguishable; that he put on the brakes and skidded into the wet leaves; and that the back end of the car swerved around and struck the first tree. From then on the vehicle was out of control.
After an appeal to the circuit court the action was tried de novo to a twelve-man jury. The jury returned a verdict finding the defendant guilty of a violation of the ordinance, and judgment was entered upon the verdict. The defendant appeals.
The only issue is whether there is sufficient credible evidence to sustain the verdict.
It is settled in forfeiture cases that the burden of proof is on the municipality to establish its case by a clear preponderance of the evidence or by clear, satisfactory and convincing evidence. Waukesha County v. Mueller (1967), 34 Wis.2d 628, 150 N.W.2d 364. If there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's verdict, the verdict must be sustained on appeal. Weeden v. Beloit (1966) p 29 Wis.2d 662, 139 N.W.2d 616.
The defendant was not cross-examined nor were there any eyewitnesses. The defendant contends that his testimony was uncontradicted and not incredible and must be accepted as a verity. It is his position that the jury acted solely upon speculation and conjecture.
It is true that when a jury makes a finding based on conjecture and speculation that finding cannot stand. Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706. Defendant is mistaken, however, when he states that testimony can be contradicted only by internal inconsistencies in the defendant's own testimony or by direct testimony of other witnesses. Physical evidence may not only contradict oral testimony but, if irrefutable and unquestionable, it may render testimony incredible. Johnson v. McDermott (1968), 38 Wis.2d 185, 156 N.W.2d 404; Nieman v. American Family Mut. Ins. Co. (1968), 38 Wis.2d 62, 155 N.W.2d 809. Thus, in Fields v. Creek (1963), 21 Wis.2d 562, 124 N.W.2d 599, where the defendant testified that he was going 12 to 15 miles per hour but the skid marks were 31 feet long, this court held that the jury was not obligated to accept such testimony.
Defendant contends that a vehicle may skid without the fault of the driver, and that in this instance it was the pile of wet leaves and not unreasonable speed that caused the accident. To say otherwise, he submits, would create an air of speculation. This, however, totally ignores the physical evidence presented at the trial relating to the specific fault condemned under sec. 346.57 (2), Stats., that is, driving at a speed greater than is reasonable or prudent for the conditions and hazards then existing.
Abbott v. Truck Ins. Exchange Co. (1967), 33 Wis.2d 671, 148 N.W.2d 116.
The road conditions were established by the defendant himself when he testified that the roadway was wet, leaf-strewn and dark. His speed can be reasonably inferred from the testimony of the officer and the physical facts that the car was damaged at both front and rear and the car skidded 166 feet with the brakes on, striking three trees in the process.
The evidence is amply sufficient to support the jury's verdict.
By the Court. — Judgment affirmed.