June 6, 1962 —
June 29, 1962.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Richard J. Callaway, attorney, and Robert D. Martinson of counsel, both of Madison.
For the respondents there was a brief by Roberts, Boardman, Suhr, Bjork Curry, attorneys, and Kenneth T. McCormick, Jr., of counsel, all of Madison, and oral argument by Mr. McCormick and Mr. Glenn D. Roberts.
Action by Steven A. Gile, a minor, through his guardian ad litem, and his parents to recover damages for injuries sustained from being struck by an automobile owned and driven by defendant Edna H. Widholm. Mrs. Widholm's insurance carrier, State Farm Mutual Automobile Insurance Company, also was named as a defendant.
The accident occurred about 4:45 p.m. on December 1, 1959, near the intersection of King and Doty streets in the business section of the city of Madison. King street is a two-way street running in an east and west direction, While Doty street is a one-way street running from northeast to southwest. It joins King street at this intersection from the south. Another one-way street, Webster street, running from northwest to southeast, joins King street at this intersection from the north directly opposite the junction with Doty street.
Prior to the accident Mrs. Widholm had been driving west on King street and had made a left turn into Doty street. Steven Gile, who was then seven years of age, had been standing with his younger brother at the curb on the southwest corner of the intersection and had started to run across Doty street. There is some dispute in the testimony as to whether he was crossing within the crosswalk lines or to the south thereof. However, the position of the boy's body after the accident strongly indicates that he was not crossing at the crosswalk but was some little distance to the south thereof when struck.
Mrs. Widholm testified that she had been traveling at a speed of 20 to 25 miles per hour on King street but, as she approached the intersection, had reduced her speed to about 15 miles per hour when she first saw the boy dart into the street. Just prior to this, she had observed some children standing on the sidewalk at the southwest corner of the intersection.
Upon seeing the boy run into the street she immediately applied her brakes, but the right front fender of her car struck the child. The impact hurled the boy to the south but the car came to a stop to the north of him. The child was not moved until after the arrival of the traffic officer. This officer found the boy lying parallel to Doty street at about its center; the street is 45 feet wide from curb to curb. The officer observed debris on the pavement such as might be loosened from underneath a car fender by an impact. The center of this debris was eight feet from the boy and 15 feet from the south line of the crosswalk. Thus, the boy was lying approximately 23 feet from the nearest crosswalk line. The location of this debris tends to establish the point of impact as approximately 15 feet beyond the crosswalk.
As a result of being struck, the boy suffered several fractures as well as bruises and contusions. This action was commenced to recover damages for these injuries. It was tried to the court and jury, and a special verdict was submitted which asked the jury to determine whether Mrs. Widholm was negligent as to lookout, speed, or yielding right-of-way, and whether such negligence, if found, was causal. It also asked the jury to determine whether the boy was negligent as to lookout, as to entering the roadway under the conditions then existing, or as to yielding right-of-way, and whether such negligence was causal. The jury returned a verdict finding Mrs. Widholm not negligent in any respect, finding the boy negligent in all three respects, and finding that each aspect of the boy's negligence was causal. Although it was not then required to answer the question on the apportionment of negligence, it did so, attributing 100 percent to the boy and "None" to Mrs. Widholm.
Defendants moved for judgment on the verdict. Plaintiffs moved the court to change the jury's answers, with respect to defendant Widholm's negligence as to lookout and right-of-way, from "No" to "Yes," and in the alternative for a new trial. The trial court denied plaintiffs' motions, and on August 7, 1961, judgment dismissing the action was entered in favor of defendants. From this judgment plaintiffs have appealed.
Plaintiffs advance three contentions on this appeal:
(1) That the evidence establishes as a matter of law that Mrs. Widholm violated the provision of a safety statute, sec. 346.31(3)(c), in making a left turn into Doty street;
(2) That the trial court committed prejudicial error in its instructions to the jury; and
(3) That a new trial should be granted in the interests of justice.
Alleged Violation of Safety Statute.
Sec. 346.31(3)(c), Stats., requires a driver in making a left turn onto a one-way street to use "the lane next to the left-hand curb or edge of the roadway." Plaintiffs argue that, because the point of impact was at about the center of Dory street, some portion of Mrs. Widholm's car must have been to the west or right of the center line at the time the boy was struck. However, sec. 346.31(3)(c) does not require that a driver, after making a left turn into a one-way street, continue in the left-hand lane. Therefore, we do not consider that the evidence establishes as a matter of law that Mrs. Widholm violated this statute in making her left turn.
Furthermore, plaintiffs are not entitled to raise the violation of this safety statute for the first time on appeal. Plaintiffs made no request that a question be submitted in the special verdict inquiring as to Mrs. Widholm's negligence with respect to violating such statute. Therefore, they are foreclosed from raising this issue as a matter of right on appeal. Scalzo v. Marsh (1961), 13 Wis.2d 126, 141, 108 N.W.2d 163.
In its instructions to the jury, the trial court charged that the negligence of a child depends upon his age, capacity, discretion, knowledge, and experience. This is substantially the instruction approved by this court in Brice v. Milwaukee Automobile Ins. Co. (1956), 272 Wis. 520, 525, 76 N.W.2d 337. However, later the court, in defining negligence as applied to the adult defendant Widholm, charged that "every" person is negligent when such person fails to exercise the degree of care which would be exercised by a reasonably prudent person. Plaintiffs contend that this latter portion of the charge was erroneous without a clear statement that the definition therein applied only to the adult defendant.
We find it unnecessary to pass on this alleged error. This is because the jury absolved Mrs. Widholm of all negligence. It is not claimed that the instructions were too favorable to her, but rather that they were unfavorable to the minor plaintiff. However, unless some negligence could be established against Mrs. Widholm it is immaterial whether the boy was found guilty of negligence.
New Trial in the Interests of Justice.
The real basis of plaintiffs' appeal in this case is their request for this court to exercise its discretionary power under sec. 251.09, Stats., to order a new trial in the interests of justice. However, this court will not exercise this discretion unless it has been convinced that there has been a probable miscarriage of justice, viewing the case as a whole. Scalzo v. Marsh, supra, page 146; Minkel v. Bibbey (1953), 263 Wis. 90, 56 N.W.2d 844. After a careful reading of all the record testimony bearing on negligence issues, we are not convinced that there was any probable miscarriage of justice in the jury's verdict which resulted in no recovery of damages by the plaintiffs.
The strongest argument advanced by plaintiffs is that Mrs. Widholm had ample time to have stopped her car before striking the child. They base this on her testimony, in response to a question put by the court, that about ten seconds elapsed between the time she first saw the boy in the street and the impact. The trial judge, apparently doubting the correctness of this estimate, questioned her further. She then reduced the time element to six or eight seconds, but added that she was not sure of her estimate.
The jury must have considered Mrs. Widholm's time estimate clearly erroneous, and so do we. We deem her testimony, that she applied the brakes as soon as she saw the boy in the street, as being more in accordance with the established facts. Therefore, we find no probable miscarriage of justice.
By the Court. — Judgment affirmed.