Opinion
Nos. 344, 345.
Argued February 27, 1973. —
Decided April 9, 1973.
APPEALS from judgments of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Reversed and remanded.
For the appellants there were briefs by Cannon, McLaughlin, Herbon Staudenmaier, attorneys, and L. William Staudenmaier of counsel, all of Milwaukee, and oral argument by L. William Staudenmaier.
For respondent Dyanne M. Wicker there was a brief by Brady, Tyrrell, Cotter Cutler, attorneys, and Peter W. Bunde and Peter C. Karegeannes of counsel, all of Milwaukee, and oral argument by Mr. Bunde.
For respondent Walter Hochmuth there was a brief and oral argument by Burton B. Polansky of Milwaukee.
Facts.
These appeals involve. two actions which were consolidated for trial at defendants' request. One is a wrongful death action commenced by plaintiff-respondent, Dyanne M. Wicker. The other is an action brought for personal injuries by plaintiff-respondent, Walter Hochmuth. Both actions arise out of an accident in the city Milwaukee in which the automobile driven by defendant-appellant, Joy W. Hadler, struck two men, Paul Wicker and Walter Hochmuth. The two had been scuffling or fighting in a traffic lane of West Appleton Avenue when they were struck.
The accident occurred shortly after 2 a.m. on Sunday, December 7, 1968.
The sequence of events leading up to the accident can be described as follows:
Plaintiff Hochmuth had worked in his used car lot until about 9 p.m. that evening. He then went home, and he and his wife went out for dinner. After dinner they went to a tavern where they remained until approximately 1:30 a.m. Hochmuth testified that he had two cocktails before dinner, one after, and two drinks at the tavern. After leaving the bar, Hochmuth was driving his car in a northwesterly direction on Appleton Avenue, just south of Burleigh Street, when the right rear side of the car was struck lightly by an automobile driven by Paul Wicker, husband of plaintiff-respondent, Dyanne M. Wicker.
Hochmuth testified that, after this happened, he "kept on going because we were in traffic." Wicker then maneuvered his car behind the Hochmuth vehicle, blinked the headlights and sounded the horn, signaling Hochmuth to pull over to the curb. Hochmuth proceeded through the intersection, maneuvered his car over to the right-hand lane from the left-hand lane, and stopped. (Appleton Avenue has three lanes in each direction, one for parking, two for driving.) Hochmuth testified that Wicker pulled up behind and again struck the rear of the Hochmuth vehicle. Hochmuth testified that he was not injured by the second bumping, but that his wife, sitting in the passenger side front seat, was injured. Wicker then got out of his car and walked around to the passenger's side of the Hochmuth car. He told Mrs. Hochmuth that he had insurance that would cover her injuries.
Wicker walked away, apparently to summon the police. Shortly thereafter, he returned. He walked to the front of the Hochmuth car, wrote down the license number, then returned to his automobile and started the engine. Hochmuth testified that, hearing the engine start, he got out of his car and walked over to Wicker's car, tapped on the window and told Wicker not to leave. According to Hochmuth, Wicker immediately got out of his car and grabbed Hochmuth by the lapels of his coat. Hochmuth then grabbed Wicker by the lapels also. The two men spun around toward the traffic, ending up in the portion of the traffic lanes traveled by northbound traffic on Appleton Avenue. At that point the two men began falling, with Wicker ending up on his back on the pavement with Hochmuth kneeling or crouching over him.
The scuffle had been going on for no more than thirty to sixty seconds when both men were struck by an automobile driven by the defendant, Joy W. Hadler, the automobile striking Wicker's head. According to Hochmuth, neither he nor Wicker had noticed the oncoming Hadler automobile at any time before the accident.
Defendant Hadler was driving northwest on Appleton Avenue. He had just crossed West Burleigh Street and was traveling at about 30-35 miles per hour. He was driving in the middle lane with his low beam headlights on. There are overhead street lights, located on a median strip, at the place of accident. Hadler stated that he did not notice anything in the highway until he was about 30 feet away from what he then believed to be a tire lying in the roadway. He did not apply his brakes or turn out the lane. He stated there was adequate space for him to have turned out to the left lane without hitting the object or the median strip. When he was five feet from the object in the highway, he realized it was in fact two men. He attempted to swerve around them, but hit the head of Paul Wicker. He proceeded 150 feet and parked at the curb. An independent witness, Alfred Hoffman, testified that he was driving behind Hadler, observed the two men fighting in the street when he was about 150 feet away, that the lighting was adequate, and that the two men continued to fight until they were hit by the Hadler automobile.
The parties stipulated that the case be submitted to the jury on two independent two-way comparisons of negligence, rather than on one three-way comparison. In each case, the jury found the defendant Hadler 75 percent negligent and the two men who were hit 25 percent negligent. Gross damages in the amount of $41,610.50 and $1,597.50 were awarded to Dyanne M. Wicker and Walter Hochmuth, respectively. Following motions after verdict, judgment was entered on April 13, 1972, in Case Number 344, and on May 3, 1972, in Case Number 345. On May 25, 1972, defendants filed timely notices of appeal.
In prizefight parlance, this was a quick knockdown. The scuffle between the two plaintiffs lasted no more than thirty to sixty seconds. There is a question as to responsibility for the scuffle. There is no question that it ended with one participant on his back on the pavement, the other kneeling or crouched over him.
The additional fact, not in dispute, is that this fight or scuffle took place in a traffic lane, not at a crosswalk, of a well-traveled traffic artery in the city of Milwaukee. (Appleton Avenue at the point where defendant's automobile struck the prone or near-prone individuals is U.S. Highway 41, city route.)
What duties, as to lookout and due care, devolve upon either or both of two contestants in a mid-block street scuffle? What if a group of adults chose a major city highway as the place to play a game of football or baseball? Would the duty to watch out for oncoming cars be any less for such willing participants in a street game than it is for a pedestrian crossing such highway at a place other than a crosswalk? While the right-of-way statute refers only to persons crossing at other than a crosswalk, we do not see how or why entirely volitional participation in a street game lowers, much less removes, the duties placed upon one walking across the street. Running for a curbside first base or toward a mid-block goal line does not excuse the runner from the reasonable man duty to exercise due care imposed upon one walking across the highway. In fact, it adds an additional element: using a highway for a purpose for which it was not intended, and placing oneself in a position of danger while so doing.
Sec. 346.25, Stats.
This court has, in a number of cases, held that a pedestrian, crossing a highway at other than a crosswalk, is, as a matter of law, at least 50 percent negligent in the event he is struck by a motor vehicle during the crossing. However, these cases cite and rely upon the right-of-way statute, imposing on a noncrosswalk pedestrian on a highway an absolute duty to yield the right-of-way. Where a person had stepped out of his car and walked eight feet to another car, he was held not to be a "pedestrian" within the meaning of the right-of-way statute.
Nelsen v. Cairo (1955), 270 Wis. 312, 70 N.W.2d 665; Post v. Thomas (1942), 240 Wis. 519, 3 N.W.2d 344; Langworthy v. Reisinger (1946), 249 Wis. 24, 23 N.W.2d 482.
Sec. 346.25, Stats.
Carlsen v. Hardware Mut. Casualty Co. (1949), 255 Wis. 407, 411, 39 N.W.2d 442.
Where a person was struck by an automobile while lying unconscious on the street, he was held not to come within the right-of-way statute because, ". . . One who is unconscious cannot take the action that may be necessary to enable him to yield the right-of-way and cannot be held responsible for nonperformance of an act that it is impossible for him to perform." However, where such opportunity to observe is lost, on the part of a pedestrian, through the injured party's own acts, a jury verdict denying recovery has been upheld.
Kleiner v. Johnson (1946), 249 Wis. 148, 152, 23 N.W.2d 467.
Gilberg v. Tisdale (1961), 13 Wis.2d 249, 255, 108 N.W.2d 515.
We read these cases, particularly the last two cited, as distinguishing between voluntary and involuntary acts resulting in a person being in the highway at other than a crosswalk. In the Gilberg Case, this court stated, ". . . Whether or not she can properly be considered a pedestrian while she was lying there, while she was a pedestrian she did not observe the care required of pedestrians and that lack is a cause of her accident. . . ." So we conclude that persons on a highway for game or fight are required to maintain a lookout and are negligent for placing themselves in such position of danger to their own safety — but only if their presence is entirely voluntary.
Id. at page 255.
The "if" is added and becomes important in a case, as we have here, involving a fight or scuffle. On many occasions, perhaps most, both participants in a boxing or wrestling contest enter the fray willingly. But not always so. Here there was testimony that one plaintiff was grabbed by the lapels by the other, jerked and thrown or wrestled to the pavement. If this was the fact, then the unwilling participant in the scuffle, like the unconscious person on the pavement, had no duty to observe the standard of care and lookout required of pedestrians. He did not willingly place himself in a position of danger. He must be permitted to defend himself against the attack made upon him. One so acting in self-defense has no duty to watch out for approaching vehicles. His attention is justifiably concentrated upon avoiding blows from his aggressor.
As to the aggressor of two willing participants in a fight in the middle of a highway, there is involved not only the duty to maintain lookout, but the deliberate act of placing oneself in a position of danger — to wit: scuffling in the middle of a highway. Where a jury verdict, upheld by the trial court, was 60-40 percent in favor of a plaintiff who caught his arm between a parked train car and defendant's truck which was backing up, this court reversed, holding, as a matter of law, that the negligence of the plaintiff was at least equal to that of the defendant because the plaintiff had deliberately placed himself in a position of danger. Unless this holding were to be reversed, we see no way of making voluntary participation in a mid-highway fight or scuffle less of a deviation from the reasonable man standard than was the conduct of the plaintiff in the Gvora Case.
Gvora v. Carlson (1949), 255 Wis. 118, 37 N.W.2d 848.
In the case before us, no great consequence or importance was given at the trial to who was responsible for the street scuffle. True, the sequence of events leading up to the accident was testified to. But no instructions were requested or given on the matter of whether the scuffle was begun by one of the two scufflers, or whether it was voluntarily engaged in by both participants. There is no way, from this verdict, of gathering who the jury found to be the aggressor or whether, alternatively, it found the scuffle to have been willingly engaged in by both of the plaintiffs. Whether the significance of the voluntariness or lack thereof as to participation on the part of either of the two scufflers was overlooked or felt to be inconsequential, we find that the real controversy between the parties has not been fully tried. This is not a case where there were alternative causes of action, and the parties made a choice. This is not a case of the inclusion of a misleading question in a jury verdict which may lead to jury confusion. Rather, it is a case where we exercise our discretion to order a new trial because it appears to us that the real controversy has not been fully tried and that justice has probably miscarried. By the Court. — Judgments reversed, and cause remanded for a new trial consistent with this opinion.
John Mohr Sons, Inc. v. Jahnke (1972), 55 Wis.2d 402, 407, 408, 198 N.W.2d 363.
Behning v. Star Fireworks Mfg. Co. (1973), 57 Wis.2d 183, 188, 203 N.W.2d 655.
Weggeman v. Seven-Up Bottling Co. (1958), 5 Wis.2d 503, 93 N.W.2d 467, 94 N.W.2d 645.