December 6, 1954 —
January 11, 1955.
APPEAL from an order of the circuit court for Marinette county: AROLD F. MURPHY, Circuit Judge. Affirmed.
For the appellants there was a brief by Eastman, Rose Faller and Norman B. Langill, all of Marinette, and oral argument by John E. Faller.
For the respondent there was a brief and oral argument by Emmet McCarthy of Marinette.
Action for damages sustained in a collision between two automobiles. The jury found the causal negligence of plaintiff, who drove one of the cars, was equal to that of defendant Allen Peterson, who drove the other. The trial court denied defendants' motion for judgment on the verdict and granted plaintiff's motion for a new trial. Defendants appeal.
The plaintiff is a dentist, sixty-one years of age, who has practiced his profession for thirty-nine years. On November 21, 1950, he drove his automobile at a speed of 40 miles per hour on a rural highway overtaking the farm truck of defendant Arthur W. Peterson driven by his son and employee, the defendant Allen Peterson, aged twenty-one. The truck was towing a trailer 92 inches wide loaded with straw. As plaintiff was in the act of passing, Allen turned to his left, across the highway, intending to enter a field through a gap in the fence. Allen's left front fender struck the right rear fender of plaintiff's automobile. Plaintiff lost control of his car which ran off the road. Plaintiff sustained head injuries which severed the optic nerve of his left eye causing blindness in that eye.
A special verdict was submitted. The court answered the questions dealing with Allen Peterson's negligence thereby finding that he was causally negligent in failing to keep a proper lookout for traffic to his rear; in signaling his intention to turn left; and in turning left when he could not do so with reasonable safety. By its answers to questions (3) and (4) the jury found that plaintiff at and immediately before the collision was causally negligent in respect "to giving an audible signal by blowing the horn before attempting to pass the truck driven by Allen Peterson." The jury found the causal negligence of the two drivers to be equal, and found that $4,500 would fairly and reasonably compensate plaintiff for his personal injuries.
The trial court then granted plaintiff's motion for a new trial for the following reasons:
"(a) The court erred in the trial in submitting questions (3) and (4).
"(b) The verdict is contrary to law and the evidence (no credible evidence to support answers to questions (3) and (4)).
"(c) Inadequate damages awarded plaintiff.
"(d) In the interests of justice."
The court's written decision states that questions (3) and (4) should not have been submitted because the testimony of the two persons in the truck that they did not hear plaintiff's horn was insufficient to raise a jury question in view of plaintiff's testimony that he had blown it. In this decision the court also said:
"No one will ever know what motivated the jury to find that the plaintiff failed to sound his horn (as they found) and that he was equally negligent with the defendant in (a) failing to maintain a proper lookout, (b) giving a signal or (c) making a movement to the left when he could not safely do so. The same perversity pervades the finding of the jury on the assessment of plaintiff's damages. It is perfectly clear that something other than a fair consideration of the evidence in this case crept into the verdict of the jury and it is manifestly perverse."
Additional facts will be stated in the opinion.
Sec. 85.16, Stats., provides:
"RULES FOR PASSING. (1) Signals for passing. The operator of an overtaking motor vehicle not within a business or residence district shall give audible warning with his warning device before passing or attempting to pass a vehicle proceeding in the same direction."
To comply with the purpose of the statute the warning must be given in volume and at a time and place sufficient to inform a driver reasonably attentive to his own obligation to other users of the highway that an overtaking motorist intends to pass him and is about to do so. The jury might believe from plaintiff's own testimony that he blew his horn twice when he was 300 feet behind defendants' truck and not thereafter. We think that reasonable minds might differ as to whether that is sufficient to convey to the leading driver the information intended by the statute that the second car is attempting to pass him. We consider that there was a jury issue on this point.
We do not find abuse of discretion in ordering a new trial for the other reasons the court gave in the decision on plaintiff's motion after verdict. The plaintiff did blow his horn, though perhaps not at a proper distance. As a matter of law, such causal negligence as plaintiff was guilty of in this matter did not equal the negligence of Allen Peterson in turning across the highway without a signal and without observing plaintiff's automobile, though that was then almost abreast of him.
In the matter of damages, at the time of trial the plaintiff had not experienced any loss of income and made no claim for any. But his doctor, Dr. Zeratsky, testified that:
(Summarized.) "He was in shock and partially comatose. He sustained a basilar skull fracture of the sphenoid bone severing the optical nerve causing permanent blindness in the left eye. The optic nerve was torn by the head injury. Laceration of the nerve is like cutting an electric wire, there are no impulses that get through so the patient had immediate blindness in that eye. The damage to the patient's optic nerve is permanent and so is the loss of vision in the left eye. There is a permanent loss of binocular vision resulting in the loss of depth perception. The remaining eye has to be carefully guarded. It becomes very precious. The patient also suffered mental depression because of the fear of objects approaching on the blind side. The patient being a dentist suffered a very major disability because there is no depth perception with one eye. As a dentist he would have difficulty placing his tools the proper depth in a patient's mouth in the area he is working. He has difficulty working at close range because he would have to feel his way. He suffered marked mental depression and persistent headaches for which he received stimulants to pick him out of his depression. For his mental depression he was given dexedrine and oretone and medication for his headaches. The headaches persist and is a traumatic headache. It is an evasive sort of thing depending on the size of the skull injury and brain laceration."
The plaintiff was later examined by Dr. James V. May, specializing in the field of eye, ear, nose, and throat. He testified:
(Summarized.) "There will be no recovery from the blindness of the left eye. The plaintiff having lost depth perception will have to feel to find any cavities in which he wants to drill on his patients. He is also subject to the hazards of injury to the remaining eye and hundreds of diseases that the eye is subject to. The vision in the plaintiff's right eye is normal. Vision in patient's both eyes was good prior to the accident though he wore glasses for close work."
The plaintiff, himself, testified:
(Summarized.) ". . . the headaches continue. They're brought on mostly by my work. My work requires the use of magnifying mirrors. They are used inverted. If you are right-handed, you use the right-hand side of the dental chair and the closest point to the mirror is your left eye. If you have an impairment in the one eye, the strain is thrown onto the other. Since the accident I get to the office late in the morning and make less appointments to get away from the extra strain but the headaches continue and I have to either go to the doctor or where it is quiet."
None of the testimony concerning the extent of the injuries is disputed. Though no loss of income and no disfigurement is involved, we agree with the trial court that $4,500 is inadequate for this injury.
We find no abuse of discretion in the order directing a new trial.
By the Court. — Order affirmed.