In Carstensen v. Faber (1962), 17 Wis.2d 242, 249, 116 N.W.2d 161, we stated that, "When a jury's findings are challenged on appeal, it is the function of this court to sustain them when there is any credible evidence which under any reasonable view supports such findings."Summary of this case from Ashley v. American Automobile Ins. Co.
June 5, 1962 —
June 29, 1962.
APPEAL from a judgment of the circuit court for Taylor county: LEWIS J. CHARLES, Circuit Judge. Affirmed.
For the appellants there was a brief by Nikolay, Jensen Scott of Medford, and oral argument by Raymond H. Scott.
For the respondents there was a brief by Smith, Puchner, Tinkham Smith of Wausau, and oral argument by Charles F. Smith, Jr.
This is an action by the plaintiffs, Baldwin and Hilda Carstensen, against the defendant, James L. Faber, a minor, and Faber's insurer to recover damages for the wrongful death of their son, Ronald Carstensen, who was killed in an automobile collision which occurred at the intersection of two highways. Faber was operating an automobile which collided with one operated by Ronald Carstensen.
The following facts appear in the record:
On Friday, January 10, 1958, at approximately 10 p.m., Ronald Carstensen, the eighteen-year-old son of the plaintiffs, was operating his 1953 Ford automobile in a northerly direction on a town highway located in the town of Browning, Taylor county. At the intersection of this road with State Highway 64, which is an arterial running east and west, a collision occurred between Carstensen's automobile and a vehicle traveling in an easterly direction upon Highway 64, which was operated by the defendant, James L. Faber. A stop sign was located at the intersection which required Carstensen to stop for the arterial. The legal speed limit on Highway 64 at the time and place of the accident was 55 miles per hour. The town road was snow-packed, but Highway 64 was clear. Nighttime visibility was normal.
Faber testified that prior to the collision his headlights were on. He stated that he was following another automobile for a distance of 500 feet at a speed of 50 to 55 miles per hour. He testified that the car preceding him turned to the south at the intersection and proceeded along the town road. At that time Faber was 200 to 250 feet from the turning vehicle and was traveling at a slower rate of speed. After the vehicle turned off Faber claims that he switched his headlights to bright and accelerated. He initially observed the Carstensen automobile when he was 150 feet away. At that time Carstensen's automobile had its front wheels two feet onto the blacktop of Highway 64 and was angling northwesterly across Faber's lane of travel at a speed of 5 to 10 miles per hour. Faber braked hard and skidded 82 feet to the point of collision. The left front of the Faber car hit the left side of the Carstensen automobile, starting at a point just to the rear of the left front headlight and then along the left side of the automobile. The impact occurred in the eastbound lane of Highway 64 at the west edge of the intersection. Faber was seriously injured and Carstensen was killed.
By special verdict the jury found Faber causally negligent with respect to lookout but not negligent with respect to speed or failure properly to light his vehicle. Carstensen was found causally negligent with respect to lookout and failing to yield the right-of-way but not negligent with respect to stopping before entering an arterial highway. Total causal negligence was apportioned 30 percent to Faber and 70 percent to Carstensen. A judgment on the jury verdict in favor of the defendants was entered. From this judgment the plaintiffs appeal.
Other facts will be stated in the opinion.
The appellants' first contention is that the evidence established as a matter of law that Faber was negligent with respect to speed. They argue that Faber's testimony regarding his speed was incredible in the light of the physical evidence.
Faber testified that he was traveling within the speed limit (55 m.p.h.) just prior to the accident. The physical facts indicate that Faber's brakes were locked for a distance of 82 feet prior to impact, and that his automobile skidded an additional 110 feet after the impact. Photographic exhibits of the damaged automobiles indicate that the collision was a violent one.
The jury apparently believed Faber's testimony that he was traveling within the speed limit. The first question presented, therefore, is whether the physical facts render his testimony incredible so as to compel this court to hold him negligent with respect to speed as a matter of law. In resolving this question it is necessary to review the evidence in a light most favorable to Faber. Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 101 N.W.2d 83.
Faber skidded a considerable distance both before and after the impact. The evidence established that Faber's person was thrown forward violently by the impact, and he was thereafter unable to control his automobile. The length of the skid marks was a factor to be weighed by the jury. Lengthy skid marks do not necessitate a finding of speed as a matter of law. The appellants have relied upon our statement in Rademan v. Rankin (1961), 13 Wis.2d 319, 323, 108 N.W.2d 371. They point out that in that case we held that skid marks of 32 feet, eight inches before the impact and 34 feet after the impact raised an inference of speed. It should be noted, however, that in the Rademan Case the skidding automobile pushed the other automobile sideways a distance of over 34 feet. Also, the trier of fact in the Rademan Case made a finding that there was excessive speed. We merely determined that the record contained evidence which supported such a finding. The Rademan Case does not stand for the proposition that skid marks of a particular length require a finding of excessive speed as a matter of law.
In Milwaukee Automobile Mut. Ins. — Co. v. Farmers Mut. Automobile Ins. Co. (1957), 2 Wis.2d 205, 208, 85 N.W.2d 799, the court, in quoting Kleckner v. Great American Indemnity Co. (1950), 257 Wis. 574, 577, 44 N.W.2d 560, stated:
"`The probative value of the testimony of witnesses is not destroyed by physical facts unless the physical facts are irrefutably established and permit of only one deduction.
"`So frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except where they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other. 20 Am. Jur., Evidence, p. 1034, sec. 1183.
"`. . . this court has heretofore had occasion to remark, in Glatz v. Kroeger Bros. Co. 168 Wis. 635, 170 N.W. 934, that when two automobiles come together on the highway a lot of surprising consequences flow and an attempt to estimate the results of the forces involved, in such a way as to give a single interpretation to the physical facts, is always difficult and frequently impossible. [Citations omitted.]'"
"Long experience has shown that in all except in a very few cases the position of the cars and their condition after a collision has very little, if any, probative value."
The physical facts in the case at bar do not necessitate a finding that Faber was speeding. The same set of facts could conceivably support a jury finding of negligent speed. However, where different inferences may reasonably be drawn from credible evidence, the question is for the jury, and its findings will not be disturbed. Maccaux v. Princl (1958), 3 Wis.2d 44, 87 N.W.2d 772; Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740.
There is one further point raised by the appellants with respect to Faber's speed. During the course of the trial, an offer of proof was made by the appellants. The offer was that a witness, Herbert Greitsch, who had not observed the automobiles involved in the accident but who had heard Faber's vehicle approaching the intersection, would testify that from his experience in listening to vehicles upon the highway he was able to determine whether a vehicle was traveling at a high rate of speed and that in his opinion Faber's vehicle was "traveling at a high rate of speed."
Mr. Greitsch was unable to see the accident because he was standing behind his home, which is located southeast of the intersection. In sustaining the objection to this testimony as to speed, the learned trial judge expressed the opinion that the proffered testimony was in the realm of conjecture and speculation. The noise produced by automobiles will vary significantly depending on such factors as wind condition, the condition of the muffler, and the character of the tires. The trial judge stated:
". . . noise is not an inevitable concomitant of speed. A 1925 Dodge at 25 miles per hour could conceivably make more noise than a Ferrari at 100 miles per hour."
We share the doubt expressed by the trial court as to the admissibility of this testimony. In any event, it did not abuse its discretion in rejecting the offer. The determination to admit or reject testimony of an expert witness is discretionary with the trial court. Henthorn v. M. G. C. Corp. (1957), 1 Wis.2d 180, 190, 83 N.W.2d 759; Neumann v. Evans (1956), 272 Wis. 579, 586, 76 N.W.2d 322.
Furthermore, the substance of the offer of proof was successfully elicited from Mr. Greitsch despite the court's original ruling. Mr. Greitsch was permitted subsequently to testify that the sound produced by Faber's vehicle "was not a normal sound that you normally hear at regular speeds" and that he had made up his mind "that that car might be traveling fast." Thus, the rejection of the formal offer of proof would seem to have been immaterial. Insofar as it was in fact received, the value of Mr. Greitsch's testimony was for the jury, and its negative finding as to speed cannot be disturbed.
The appellants' last contention is that there is no credible evidence to support the jury's finding that Faber was not negligent with respect to having his vehicle properly lighted. Two passengers in an automobile which had been preceding the Faber car by 200 to 500 feet testified that they did not see any vehicle, or the lights of any vehicle, behind them. One of these witnesses made no observation to the rear; however, the other witness made several observations to the rear and saw neither headlight nor any automobile. On the other hand, Faber testified that his lights were on at all times prior to the collision. The headlight switch on Faber's vehicle was pulled out in an "on" position and bent over after the collision. In view of this conflicting testimony, whether Faber's headlights were on was an issue for the jury, which they resolved in Faber's favor.
When a jury's findings are challenged on appeal, it is the function of this court to sustain them when there is any credible evidence which under any reasonable view supports such findings. State ex rel. Isham v. Mullally (1961), 15 Wis.2d 249, 112 N.W.2d 701.
By the Court. — Judgment affirmed.