Opinion
September 13, 1951 —
October 9, 1951.
APPEALS from two judgments of the county court of Langlade county, upper municipal branch: THOMAS E. McDOUGAL, Judge. Affirmed as to Case No. 47; reversed as to Case No. 48.
For the appellants there was a brief by James R. Durfee, attorney, and Gustav Winter of counsel, both of Antigo, and oral argument by Mr. Winter.
For the respondents there was a brief by O'Melia Kaye, attorneys, and John F. O'Melia of counsel, all of Rhinelander, for John A. Igl, and Rex M. Smith of Antigo, for Marie Wojan, and oral argument by Mr. John F. O'Melia and Mr. Smith.
Actions for damages arising out of a collision between the automobile driven by Ella M. Butler and the automobile driven by John A. Igl. The first action is brought by Marie Wojan, a passenger in the Butler car, against John Igl, Mrs. Butler, and Car General Insurance Corporation, Ltd. The second action is brought by Mrs. Butler against Mr. Igl. The actions were consolidated and tried to a jury. Upon a special verdict judgment was entered in the first action for the plaintiff Wojan against Mrs. Butler and the Insurance Company. Judgment was also entered in favor of the defendant Igl against the plaintiff Wojan for costs. In the second action judgment was entered for the defendant Igl upon his counterclaim against Butler. Ella M. Butler and Car General Insurance Corporation appeal from the judgments against them in both cases.
The accident occurred May 21, 1949, at the intersection formed by the junction of County Trunk Highway B, a black-top road running east and west, with U.S. Highway 45, a concrete road which turns from a northerly course to a westerly course in a curve at the junction.
Mrs. Butler testified that she approached the intersection traveling north on Highway 45 at a speed of forty to forty-five miles per hour; that she first saw Igl when their cars were about eight hundred feet apart. When about three hundred feet apart, Igl entered his left lane; she took her left lane; Igl swung back into his own lane; Mrs. Butler returned to her lane. Igl entered his left lane again about fifty feet from her car and the collision occurred. She further testified that the Igl car was on Highway 45 at the time of impact, but when the cars collided he swung onto the dirt road. The right front wheel of her car was on the black-top Highway B at the time of collision. Mrs. Butler could not indicate on the map the position of the cars on the highway when she first saw Igl; she was not sure of distances on the map.
The testimony of Mr. Igl was that he approached the intersection traveling east on Highway 45 at a speed of about fifteen miles per hour. He first saw the Butler car about four hundred feet away. Mrs. Butler appeared to be traveling about sixty-five miles per hour when less than one hundred feet in front of him, but he concluded that he had time to get off Highway 45 and onto Highway B. He further testified that when the cars collided his car was entirely off Highway 45; one wheel of the Butler car was off the concrete of Highway 45. He did not brake his car before the accident, but rather accelerated in order to get off Highway 45. He contended his brakes were in good condition.
Edward Wolhaupt, Langlade county traffic officer and deputy sheriff, arrived at the scene of the accident shortly after it occurred and took measurements and photographs. The damage to both cars was on the right front. Wolhaupt testified as to the position of the cars and as to skid marks on the concrete. Based on observation of the Igl automobile at the scene of the accident, he signed a complaint against Igl charging operation of an automobile with improper brakes. Records of the clerk of the lower branch of the county court, Langlade county, showed that Igl entered a plea of guilty to driving with improper brakes, was convicted, and fined.
Igl testified that he did not plead guilty to the charge of driving with improper brakes, but simply said he was willing to pay the costs.
Question 1 of the special verdict related to the negligence of John Igl. The jury found him negligent with respect to lookout and control; not negligent with respect to speed, defective brakes, yielding the right of way, and position on the highway.
All subdivisions of question 2 relating to causation in respect to the negligence of John Igl were answered "No."
In answering question 3 the jury found Ella Butler negligent as to lookout, control, yielding the right of way, and position on the highway; not negligent as to speed.
In question 4 Ella Butler's negligence with respect to control, yielding the right of way, and position on the highway was found to be a proximate cause of the collision.
In the answer to question 5 the jury found that the plaintiff Wojan did not assume the risk of Mrs. Butler's negligence.
Question 6:
"In the event you find both parties were negligent and the negligence so found was the cause of the accident, taking the total percentage of negligence as one hundred per cent, then answer this question: What percentage of such negligence causing such accident do you attribute to the respective drivers?
"A. To John Igl? Answer, 40% "B. To Ella Butler? Answer, 60%" In entering judgments the trial court disregarded the answers to question 6 as immaterial, citing Forbes v. Forbes (1938), 226 Wis. 477, 277 N.W. 112.There was considerable conflict in the testimony as to how the collision occurred, and the questions as to negligence were properly for the jury. However, the answers to question 2 (causation) and question 6 (comparison of negligence) cannot stand together. The verdict is inconsistent.
If, in answering question 2, the jury had' found Igl's negligence as to lookout and control causal, this court would have to sustain the finding, since there is ample evidence upon which the jury could have so found. The case at bar differs from Forbes v. Forbes, 226 Wis. 477, 277 N.W. 112, where the evidence would not have sustained a finding of causal connection between the negligence of the plaintiff and the accident. The court properly held that the finding of contribution was immaterial and did not make the verdict inconsistent.
The problem facing us here is that which was presented in Mitchell v. Williams (1951), 258 Wis. 351, 356, 46 N.W.2d 325, where the court said:
"Although the jury found Mitchell negligent as to speed, it found specifically that such speed was not an efficient cause which produced the collision. In spite of that finding it apportioned twenty per cent of the combined negligence to the plaintiff George Mitchell. This was an inconsistent verdict, and a new trial is required."
There is no contest as to plaintiff Wojan's cause of action. Her damages have been properly established and the verdict as to her is not inconsistent. The first judgment in Case No. 47 is therefore affirmed. See Scharine v. Huebsch (1931), 203 Wis. 261, 268, 234 N.W. 358:
"When . . . the plaintiff has recovered a verdict against the original defendant his rights in his action are established, and we see no reason why he may not then have judgment in his action and the litigation end as to him, and the defendants go on with the litigation of the issue in the action between themselves. and judgment be subsequently entered determining their rights."
The judgment for Igl against the plaintiff Wojan for costs, however, must await the outcome of the new trial in Case No. 48. It is therefore set aside.
The judgment of Igl against the plaintiff Butler in Case No. 48 is reversed and a new trial ordered.
Since a new trial is necessary, it will serve no purpose to go into a detailed discussion of the evidence or other issues raised on this appeal. However, we wish to call attention to the fact that it was improper for respondent's attorney to persist in mentioning that an insurance company was involved in this matter, and we trust that such remarks will not be repeated on the new trial.
By the Court. — The judgment in favor of plaintiff in Case No. 47 is affirmed so far as it affects the defendants Butler and the Insurance Company; the judgment for costs against plaintiff is set aside; the issue of contribution is the only issue to be tried in Case No. 47. The judgment in Case No. 48 is reversed and cause remanded for a new trial.