November 3, 1959 —
December 1, 1959.
APPEAL from an order of the circuit court for Washington county: W. C. O'CONNELL, Circuit Judge. Affirmed.
For the appellants there were briefs by Marth Marth of West Bend, and oral argument by William J. Marth.
For the respondents there was a brief by Wickham, Borgelt, Skogstad Powell of Milwaukee, for the Farmers Mutual Automobile Insurance Company, and by Jack D. Moertl of Milwaukee, for respondents other than the Farmers Mutual Automobile Insurance Company, and Edmund W. Powell of Milwaukee of counsel, and oral argument by Edmund W. Powell.
On January 11, 1957, Mrs. Genevieve Baier and her husband brought action against the insurer, employer, and executors of Alfred Laatsch, deceased. The action was for damages resulting from personal injuries sustained by Mrs. Baier in a collision which occurred February 10, 1956. The collision occurred between a car driven by Mrs. Baier, in which there was no passenger, and a car driven by Mr. Laatsch, in which Mrs. Laatsch was a passenger. Mr. Laatsch had died from causes not related to the collision.
The collision occurred at about 7:45 a. m. at an intersection of two town roads in a rural area. Mrs. Baier was traveling west, and Mr. Laatsch south. There were no signs requiring either to stop. Mrs. Baier testified that she was traveling between 30 and 35 miles per hour, and did not change her speed. She testified that she made an observation to her right as she approached the intersection, but saw no vehicle. There was testimony by Mrs. Laatsch that the Laatsch car was traveling 20 to 25 miles per hour, and there was also testimony by Mrs. Baier that immediately after the collision, Mrs. Laatsch upbraided her husband for going "over the corner so fast." The damage to the Baier car was on its right side, and the damage to the Laatsch car was at its front. There was testimony that when the collision occurred, the front end of the Baier car was well through the intersection. As a result of the collision, the Baier car spun around and rolled backward to the west, and the Laatsch vehicle came to rest, facing west in the center of the east-west road. There was testimony that there was frost on the windshield of the Laatsch car, and on the window to the left of the driver. The Laatsch vehicle had started from the Laatsch home, which was approximately a quarter of a mile north of the intersection. The witnesses testifying on the point did not agree on the extent to which the windows and windshield had frost on them.
There were open fields northeast and northwest of the intersection. Both fields had a slight rise in them, and both had some snow on them. There was testimony as to the extent to which the plowed ground showed through the snow, and pictures taken shortly after the collision indicated that more of the ground was observable in the field to the northeast than in the one to the northwest. The Laatsch vehicle was a panel truck, light in color, Some of the witnesses testified that it was white with red lettering on it, but Mrs. Laatsch testified that it was a light green. A visibility test was made at the intersection, and at 24 points within 1,000 feet to the east. This showed that a westbound driver, when 175 feet east of the intersection, could see a southbound automobile 425 feet north of the intersection, and from all other points checked could see even farther to the north.
The jury found Laatsch causally negligent as to lookout, but not negligent as to speed. They found Mrs. Baier causally negligent as to lookout, but not negligent as to speed and as to yielding right of way. They attributed 70 per cent of the total causal negligence to Laatsch, and 30 per cent to Mrs. Baier. Mrs. Baier's damages were fixed at $3,000 for past pain and suffering, $15,000 for permanent disability, including future pain and suffering and scar, and special damages. A number of items of damages sustained by Mr. Baier were either stipulated to, or found by the jury. Two jurors dissented from the jury's answer finding Mrs. Baier not negligent with respect to yielding right of way, and the same two jurors dissented from the answer attributing 70 per cent of the negligence to Mr. Laatsch. Two different jurors dissented from the answer finding $300 as the amount of damages sustained by Mr. Baier for loss of society, companionship, and services of his wife.
On motions after verdict, the court ordered a new trial. With respect to the cause of action of Mr. Baier, the new trial was granted because all the answers material to that cause of action were not agreed upon by the same 10 jurors. With respect to the cause of action of Mrs. Baier, a new trial was granted on issues other than damages. The order stated that the new trial was granted because the verdict was contrary to the law, contrary to the evidence, the jury failed to consider all the elements involved in answering the question on comparison of negligence, and finally in the interests of justice.
Plaintiffs appealed from the order, and defendants moved for a review of the trial court's failure to dismiss the action on its merits as to both plaintiffs.
We conclude, for the reasons which follow, that the verdict was inconsistent with respect to issues of liability but that the causal negligence of Mrs. Baier is not, as a matter of law, as great as that of Mr. Laatsch, and, therefore, that the order granting a new trial and denying a dismissal of the complaint was correct. We also express our conclusions upon several other points argued by the parties because the same points may well arise upon the second trial.
1. Right of way. It appears that both drivers maintained constant speeds for some distance before the collision. At any time shortly before they reached the intersection, it must have been apparent that there would be an imminent hazard of collision if both continued the same course at the same speed. That being true, and if Laatsch was not negligent as to speed, Mrs. Baier was obliged to yield the right of way. Sec. 85.18 (1), Stats. 1955; Vogel v. Vetting (1953), 265 Wis. 19, 26, 60 N.W.2d 399; Home F. M. Ins. Co. v. Farmers M. A. Ins. Co. (1956), 274 Wis. 210, 79 N.W.2d 834; Weisensel v. Covey (1959), 7 Wis.2d 363, 366, 96 N.W.2d 857. Thus the jury's finding that Mrs. Baier was not negligent as to yielding right of way was inconsistent with the finding that Laatsch was not negligent as to speed.
2. Comparison. Defendants contend that the negligence of Mrs. Baier was, as a matter of law, equal to, or greater than the negligence of Mr. Laatsch. Defendants, in so arguing, evidently assume that the inconsistency in the verdict must be resolved by finding Mrs. Baier negligent with respect to yielding the right of way, rather than by finding Mr. Laatsch negligent with respect to speed. Even upon that assumption, however, we conclude that the comparison of negligence is for the jury. There was evidence from which it would be reasonable to find that it was difficult for a westbound driver to distinguish the Laatsch car as it moved southward, it being of light color and being observed across one field where both snow and ground were visible, and against the background of another field where there was snow. It is true that in finding Mrs. Baier negligent as to lookout, the jury did not find that the camouflaging effect of the snow and light color of the car was a sufficient explanation of her failure to see. Nevertheless, it may properly have been an element in the comparison of the causal negligence.
In making the comparison, the jury could also properly consider that Laatsch's negligence as to lookout was more than momentary inattention. In failing to clean the frost from his windshield and window, he may have deprived himself of a reasonable opportunity to see to the side.
3. Frost on windows. The plaintiff argues that the trial court erred in denying plaintiff's motion to include in the special verdict a question concerning Mr. Laatsch's negligence as to the condition of his windshield and windows at the time of the collision. Plaintiff relies upon sec. 85.35 (3), Stats. 1955, which provided that "the windshield, side wings, and windows of all motor vehicles shall be kept reasonably clean at all times." The circuit court declined to ask a separate question with respect to Mr. Laatsch's failure to clean the frost from his windshield and windows, but did state to the jury the substance of the statute just quoted and instruct that the jury might consider it with respect to the question of lookout. We conclude that this was a proper submission of the issue as to the cleanliness of the windshield and windows. See Heagney v. Sellen (1956), 272 Wis. 107, 113, 74 N.W.2d 745, 75 N.W.2d 801.
4. Plaintiff contends that the trial court should have found defendant Laatsch negligent, as a matter of law, with respect to lookout and speed. While the plaintiff was not prejudiced by the court's failure to find Laatsch negligent as to lookout, the jury having so found, we agree with the plaintiff that upon this record, no other finding could be made. Defendants have made no claim that Mr. Baier's car, which was dark green, was obscured by camouflage. As to the speed of the Laatsch vehicle, assuming that there was enough evidence to make excessive speed a jury question, it was by no means sufficient to compel a finding of excessive speed as a matter of law.
5. Plaintiff argues that if a new trial is proper, it should be granted upon all issues. We see no reason, however, for holding that the trial court abused its discretion in limiting the trial as to Mrs. Baier's cause of action to issues other than damages. Plaintiff has not argued here that the award was inadequate, or that there was any error material to the determination of her damages. We have said that the matter of limiting issues upon a new trial is primarily for the discretion of the trial court. Korpela v. Redlin (1958), 3 Wis.2d 591, 597, 89 N.W.2d 305. No claim has been made here that the circuit court erred in ordering a new trial as to Mr. Baier's cause of action. The inconsistency of the verdict with respect to the issues of liability would be an additional reason supporting a new trial in his cause of action, as well as that of Mrs. Baier.
By the Court. — Order affirmed.