In Fields v. Creek, 21 Wis.2d 562, 572, 124 N.W.2d 599 (1963), we noted that "it is difficult to lay down precise standards which will successfully separate fair argument from unfair argument.Summary of this case from Fahrenberg v. Tengel
October 31, 1963 —
November 26, 1963.
APPEAL from a judgment of the county court of Rock county: MARK J. FARNUM, Judge. Affirmed.
For the appellants there were briefs by Wickhem, Consigny Sedor of Janesville, and oral argument by John C. Wickhem.
For the respondent there was a brief by D. W. Krueger and Geffs, Geffs, Block Geffs, all of Janesville, and oral argument by Jacob Geffs.
This is an automobile accident case, and the appeal is from a judgment for the plaintiff. The jury awarded the plaintiff $7,500 for personal injuries. Since a modified special verdict was employed by the trial court, there was no inquiry as to the specific items of negligence. The verdict contained only general questions as to the negligence of the plaintiff and the defendant driver. There were also causation questions and a comparison question. The jury found the defendant Creek 100 percent causally negligent.
The accident in question occurred on January 13, 1962, at about 9 a.m. The location of the accident was near the dead end of north Woodman road in Janesville. Woodman road runs in a roughly north-south direction, and near the north end is a driveway which runs east into a parking lot for a drugstore. There was evidence that at the place where the driveway led into Woodman road there was room for two cars to enter or exit simultaneously. There was no sidewalk or sidewalk area at the place where the parking-lot driveway led onto Woodman road.
On the day of the accident, there were high snowbanks along Woodman road which went up to a point very near the southern border of the driveway entrance. There was evidence that upon exiting onto Woodman road from the drugstore parking lot, one would have his vision obstructed; it would be difficult for a driver who had come out of the driveway to look south on Woodman road until he was at least partially on Woodman road itself. The dead end of Woodman road is about 15 feet north of the driveway to the drugstore parking lot. There is no other driveway to the north of such exit.
The plaintiff was proceeding out of the drugstore parking lot via the entrance in question. As he neared Woodman road, he claimed that he was going approximately ten miles per hour and then decreased his speed as he entered onto Woodman road itself. It is acknowledged that Fields did not come to a complete stop before proceeding onto Woodman road. He testified that until he was actually on Woodman road he could not see Creek's automobile. Fields had not as yet begun to turn south when he first sighted the Creek car.
The defendant Creek testified that he was proceeding north on Woodman road and that he had been forced to drive on the left side of Woodman road because an unidentified automobile had driven out of another driveway which was located south of the entrance to the drugstore parking lot. Creek testified that he was forced to take the wrong side of Woodman road in order to avoid a collision with the other car which had emerged from the driveway to the south.
Creek testified that he was traveling on Woodman road at a speed of 12 to 15 miles per hour when he sighted the Fields car approaching onto Woodman road. Creek claimed that the Fields car was going at about a speed of 20 to 25 miles per hour as it came out of the driveway. Fields' testimony was that after he saw Creek's auto he applied his brakes and his car began to slide on the snow. Fields then attempted to turn north toward the dead end of Woodman road in an effort to avoid a collision.
There was evidence of skid marks of 26 feet from the Fields car and skid marks of 31 feet from the Creek automobile. There was ice underneath the snow covering Woodman road. Fields gave evidence to the effect that the defendant tried to cover up a portion of the skid marks from the Creek car.
A Janesville police officer who investigated the accident issued a charge against Creek for operating his automobile on the wrong side of the road, and Creek pleaded guilty to such charge.
The cars collided to the west of the center of Woodman road. At the time of the collision there were no personal injuries reported by either party. There is conflicting medical testimony in the record as to the extent and seriousness of the plaintiff's back injuries. There is also evidence that the injuries complained of could have resulted from other occurrences apart from the collision itself. Immediately after the accident Fields engaged in the physical effort which was necessary to separate the two automobiles.
Fields did not seek medical assistance for his injuries until January 24, 1962, eleven days after the accident. As to the extent of the plaintiff's injuries, there was evidence from one physician that Fields was three percent permanently disabled. Fields also testified that he could not engage in certain types of physical activity because of the condition of his back.
The defendants complain that the jury was influenced by passion and prejudice in arriving at its verdict. They point specifically to the following portion of the closing argument of the counsel for the plaintiff:
"Ladies and gentlemen, we are being agitated here by the defense about after an accident a man who has violated the law in two respects, we should reward him and punish the man, here, who didn't violate the law. Ladies and gentlemen, the point of that argument is that they simply don't want to pay this man for hurting him. They hurt him. They put him in the hospital. The x-rays, here, you can look at it when you take it in. See this big needle? They had to take the fluid out of his back and put in a different fluid so that they could x-ray, and then they had to operate. The little nurse had the know, how he was crying and in misery, pain and suffering and anxiety. There's nothing worse. People spend millions for aspirin, for pain killers, because that's the worst punishment that can come. You notice counsel didn't advance any argument why the damages for his personal injuries should not be $25,000.
"I know you will do what is right by this man and his little family. This is the most important day in their life. A year from now, if his back has flared up and he is miserable, we can't come back here. This is their chance and the only chance, their day in court. Tomorrow, Mr. Wickhem will be trying some case or going to a football game. Next week, I will be trying a case. The judge will be trying a case. You will be going about your work. This is the day for Fields and his family. I pray to God you do what is right by this man and his family."
The defendants appeal from the whole of the judgment in favor of the plaintiff.
"346.32 REQUIRED POSITION FOR TURNING INTO PRIVATE ROAD OR DRIVEWAY. The operator of a vehicle on a highway who intends to turn into a private road or driveway shall make the approach for the turn in the same manner as specified in s. 346.31 for vehicles making an approach for a right or left turn at an intersection. If, because of the size of the vehicle or the nature of the intersecting private road or driveway, the turn cannot be made from the specified lane of approach, the turn shall be made with due regard for all other traffic."
"346.31 REQUIRED POSITION AND METHOD OF TURNING AT INTERSECTIONS. . . . (2) Right turns. Both the approach for a right turn and the right turn shall be made as closely as practicable to the right-hand edge or curb of the roadway. If, because of the size of the vehicle or the nature of the intersecting roadway, the turn cannot be made from the traffic lane next to the right-hand edge of the road way, the turn shall be made with due regard for all other traffic."
"346.47 WHEN VEHICLES USING ALLEY OR NONHIGHWAY ACCESS TO STOP. (1) The operator of a vehicle emerging from an alley or about to cross or enter a highway from any point of access other than another highway shall stop such vehicle immediately prior to moving on to the sidewalk or on to the sidewalk area extending across the path of such vehicle and shall yield the right of way to any pedestrian and upon crossing or entering the roadway shall yield the right of way to all vehicles approaching on such roadway."
"346.18 GENERAL RULES OF RIGHT OF WAY. . . . (4) Entering highway from alley or non-highway access. The operator of a vehicle entering a highway from an alley or from a point of access other than another highway shall yield the right of way to all vehicles approaching on the highway which he is entering."
1. The Negligence of the Plaintiff.
Although there were two dissents, the jury found that the plaintiff was free from negligence. We have said that a finding will not be disturbed "`if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding.'" Bleyer v. Gross (1963), 19 Wis.2d 305, 307, 120 N.W.2d 156; Van Galder v. Snyder (1948), 254 Wis. 120, 123, 35 N.W.2d 187. Our examination of the record compels the conclusion that there is credible evidence to support a finding that there was no negligence on the part of the plaintiff.
The jury was presented with conflicting evidence as to speed, and it was entitled to believe that Fields was in fact traveling at a rate of speed less than ten miles per hour. Although he did not stop as he emerged onto Woodman road, such failure to stop was not violative of sec. 346.47(1), Stats., since that statutory section applies only where there is a sidewalk or sidewalk area to be crossed. Mayville v. Hart (1961), 14 Wis.2d 292, 295, 110 N.W.2d 923.
The jury might well have been impressed with the physical structure of the locale where the accident happened. The two cars collided near the end of a dead-end street. Thus, there would be no occasion for Fields to anticipate that any vehicle approaching the driveway entrance from Woodman road would be operating on the west side of such road. Also, the driveway from which Fields was emerging had room for two vehicles, so that anyone approaching from the south would have had room to turn into the driveway irrespective of the fact that Fields' automobile was emerging at the same time.
Under these physical circumstances, the jury could reasonably have concluded that Fields' speed and lookout were non-negligent. The fact that Fields' car skidded is not necessarily evidence of negligence. Poole v. State Farm Mut. Automobile Ins. Co. (1959), 7 Wis.2d 65, 68, 95 N.W.2d 799.
On the other hand, the jury could reasonably find that the defendant was negligent in driving on the wrong side of the road under sec. 346.32, Stats., and in making a right turn from an improper portion of the roadway under sec. 346.31 (2). Creek's plea of guilty to a charge of operating his automobile on the wrong side of the road was probably a persuasive evidentiary factor to the jury.
While Creek testified that he was going 12 to 15 miles per hour, the jury was not obligated to accept this testimony in view of the 31 feet of skid marks which were left by Creek's automobile. This may have been aggravated in the eyes of the jury by the evidence which was presented suggesting that after the accident Creek attempted to obliterate a portion of the skid marks.
Ordinarily we might expect a jury to find some small degree of negligence on the part of a driver in Fields' circumstances. However, upon this record there is credible evidence to support a finding of 100 percent of the negligence on Creek. Upon the conflicting evidence which was advanced, the question was to be resolved by the jury. Heinecke v. Hardware Mut. Casualty Co. (1953), 264 Wis. 89, 94, 58 N.W.2d 442.
2. Statements of Counsel During Trial.
The defendants' counsel urges that on 19 different occasions during the course of the trial the plaintiff's counsel made remarks with the intention of improperly influencing the jury to the advantage of the plaintiff. We have examined each of the alleged incidents of "unlawyerlike conduct" and find appellants' contention in this regard devoid of merit.
3. Improper Rulings on Evidence.
The defendants contend that it was error for the trial court to refuse to admit into evidence at the trial an admission against interest contained in the following question asked of Fields at an adverse examination:
" Q. Did you feel that an accident would have happened had you been able to stop your car without skidding on the ice? A. If I had been able to stop it, it wouldn't have happened."
This matter was debated in the absence of the jury. Plaintiff's counsel objected with the following observation:
"It's an `if' question. If he hadn't started out that morning, there would have been no accident."
The trial court sustained the objection. Defendants' counsel vigorously opposed the ruling, stating:
"Let us state on the record we believe we will be materially prejudiced by the Court's ruling in this respect, because the statement offered is on a very material portion of the lawsuit. . . . We want the Court to know at this moment we regard this ruling as a very important one, and to give the Court an opportunity to correct the ruling at a later time, should the Court determine its original ruling is not correct. Will the Court instruct the jury he is reserving ruling?"
The court responded: "I will let my ruling stand."
We not only agree with the trial court, but we consider that it would have been error to have overruled the plaintiff's objection. The question assumed the existence of a material fact which had not been proved and was an improper question whether asked in direct examination, cross-examination, or at a previous adverse examination. See McCormick, Evidence (hornbook series), pp. 11, 12, sec. 7; Anno. 100 A.L.R. 1067.
The defendants also maintain that it was prejudicial error for the plaintiff to have brought out the fact that the plaintiff was insured by the same company which insured the defendants. The defendants' argument is that since the plaintiff did not have collision insurance on his own automobile, any reference to his own insurer was irrelevant. In the absence of a counterclaim the identity of plaintiff's insurer would normally be immaterial. This would be true even though it was the same insurer who carried the liability on the defendant's automobile and was itself a defendant in the action.
However, in the instant case, the defendants' counsel opened the door by interrogating the plaintiff on the question whether the plaintiff had signed a written statement "for your insurance company, in which you stated that before the accident you had been going 15 miles an hour." This cross-examination of the plaintiff would suggest that plaintiff had given such statement to a friendly representative, since it was his "own" insurance company.
This interrogation having occurred at the instance of defendants' counsel, it became entirely proper that plaintiff's counsel should subsequently be permitted to ask his client to identify the name of his insurance company in order to dispel the connotation that there was an extra quality of credence to the contents of the statement because it was given to his "own" carrier. The statement was in fact taken by a hostile source, and plaintiff's counsel was warranted in establishing such fact.
4. Final Arguments to the Jury.
We have set forth that portion of the final argument to the jury made by plaintiff's counsel upon which the defendants base their motion for a new trial. In the eyes of the defendants' counsel, the summing up was "calculated to induce the jury to ignore the evidence presented and render a verdict for plaintiff founded on sympathy."
The content of the arguments by counsel to the jury is a matter resting in the discretion of the trial court. It is only when the trial court fails in its responsibility that this court will intrude. Masterson v. Chicago N.W. R. Co. (1899), 102 Wis. 571, 78 N.W. 757. It is difficult to lay down precise standards which will successfully separate fair argument from unfair argument. We are not prepared to strike down all colorful, forensic thrusts before the jury. Oral argument to the jury need not be confined to the sterile reiteration of the testimony which was presented. Counsel have the right to analyze and exhort. As long ago as 1878, this court recognized that counsel in argument should be given "the very fullest freedom of speech." Brown v. Swineford (1878), 44 Wis. 282, 293.
There is a point when enthusiastic advocacy becomes an appeal to prejudice. It is the burden of the trial court to make sure the arguments do not exceed the bounds of fairness. See DeRousseau v. Chicago, St. P., M. O. R. Co. (1949), 256 Wis. 19, 27, 39 N.W.2d 764; Pecor v. Home Indemnity Co. (1940), 234 Wis. 407, 418, 291 N.W. 313; Markowitz v. Milwaukee E. R. L. Co. (1939), 230 Wis. 312, 320, 284 N.W. 31. Cf. Halsted v. Kosnar (1963), 18 Wis.2d 348, 118 N.W.2d 864. In the instant case, the trial court did not see fit to criticize the argument of the plaintiff's counsel, and we are not persuaded that the trial court was clearly in error in this regard.
5. New Trial in the Interests of Justice.
The jury assessed damages for personal injuries in the sum of $7,500. Fields was in the hospital from February 12, 1962, until March 9, 1962, being in traction part of the time and having been subjected to a myelogram and an operation for a herniated disc. He was not able to return to work until May 7, 1962. We conclude that the damages are not excessive.
Some of Fields' injuries may have been sustained as a result of his activity in attempting to free the two cars after the impact. This circumstance does not constitute a valid reason for considering the damages excessive. In Hatch v. Smail (1946), 249 Wis. 183, 188, 23 N.W.2d 460, we observed that an intervening act of a human which is a normal response to the stimulus of a situation created by another's negligence is not a superseding cause of the injury. The trial court's instructions on this matter were entirely proper.
We find that the parties were afforded a full and fair trial and that there is no occasion for our exercising our discretion to order a new trial in the interests of justice pursuant to sec. 251.09, Stats. There is applicable to the instant case this court's summary of the situation in Roeske v. Schmitt (1954), 266 Wis. 557, 574, 64 N.W.2d 394:
"As we have pointed out, there is no accumulation of error. The trial, a lengthy one, was conducted by able counsel, each of whom was, of course, seeking findings favorable to his client and each of whom appears to have been willing to let the chips fall where they might and upon either or any of his adversaries. We do not consider that a new trial is required."
By the Court. — Judgment affirmed.
I respectfully dissent. The quoted portion of the closing argument of plaintiff's counsel was an appeal to passion and prejudice which should not be countenanced by this court. The fact that defendant's counsel did not at the time enter a formal objection, or that the trial court did not on its own motion warn counsel that the argument was improper and instruct the jury to disregard it, is immaterial on the issue of whether this court should direct a new trial in the interest of justice. The jury's finding of no causal negligence on the part of plaintiff, while it cannot be set aside on the ground that there is no credible evidence to support it, is certainly against the great weight of the evidence. Therefore, I feel that the improper argument probably did influence the jury in making this finding. I would exercise our discretion under sec. 251.09, Stats., and order a new trial in the interest of justice.
I am authorized to state that Mr. Justice HALLOWS and Mr. Justice WILKIE concur in this dissent.