In Ide v. Wamser (1964), 22 Wis.2d 325, 332, 126 N.W.2d 59, we stated a special dignity was afforded to one who was traveling upon an arterial.Summary of this case from Ogle v. Avina
January 6, 1964 —
February 4, 1964.
APPEALS from judgments of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by John W. Emmerling of Milwaukee.
For the respondents Hollis E. Ide and Russell Johnson there was a brief by Mount Keck of Milwaukee, and oral argument by John A. Keck.
For the respondent Guy Henry Ide there was a brief by Bernstein, Wessel, Weitzen Lewis, attorneys, and Samuel Weitzen of counsel, all of Milwaukee, and oral argument by Samuel Weitzen.
These appeals are from judgments which resulted from two actions arising out of the same automobile accident; they were consolidated for the purpose of trial and appeal. The automobile collision occurred on November 15, 1960, at approximately 11:43 p.m., at the intersection of Blue Mound road and North Glenview avenue, also known as Eighty-Fourth street, in the city of Wauwatosa, Milwaukee county. In the area where the accident occurred, Blue Mound road is an arterial highway consisting of two separate roadways divided by a center median. Blue Mound road runs east and west, and the southerly or eastbound roadway consists of a curb lane at the driver's right which is used for parking and also for some distance prior to the intersection with Glenview avenue as a right-turn lane. The other lanes on Blue Mound road consist of two lanes for through-moving traffic and a left-turn lane, which for some distance west of the intersection is cut into the center median. The width of the eastbound roadway of Blue Mound road immediately west of the intersection is 44 feet, six inches.
Glenview avenue runs north and south. There are islands approximately in the center of Glenview avenue north and south of the intersection with Blue Mound road. The intersection is generally level and free of major obstructions to the view of drivers approaching from the north or west.
At the time of the collision, electric traffic-control lights were flashing red for southbound traffic on Glenview avenue and flashing yellow for eastbound traffic on Blue Mound road. It was raining, and the pavement was wet.
Guy H. Ide is the plaintiff in one of the two lawsuits, and the other plaintiffs are the executors of his wife's estate, The defendants are Eugene Richard Wamser and his insurer, and in the action brought by the executors, Guy Ide and his insurer were interpleaded as defendants.
Guy Ide was driving south on Glenview avenue, intending to continue straight ahead across Blue Mound road, the arterial highway. Guy was driving his own automobile with his wife, Jessie, a passenger in the right front seat. He stopped for the flashing red light and testified that he looked in both directions for oncoming traffic. He then proceeded across the intersection in a straight line to the point where the collision occurred.
The defendant Wamser was proceeding east on Blue Mound road accompanied by five passengers. He was in the right-hand through-traffic lane, next to the parking lane. He also intended to continue on across the intersection. Wamser testified that he had been driving between 25 and 30 miles per hour and took his foot off the gas pedal and slowed his speed by a few miles per hour when he saw the yellow flashing light at the intersection with Glenview avenue.
The legal speed limit for traffic on Blue Mound road in the area where the accident occurred was not definitely established, but King L. DeSeve, a police officer who investigated the accident, testified that it was either 25 or 30 miles per hour. Another witness, Robert Wallner, testified that at about the time of the collision he was in his automobile behind Guy Ide and observed the Wamser vehicle approaching the intersection just before the collision. Wallner testified that it was his opinion that Wamser was traveling about 40 miles per hour at that time. Wallner further testified that Wamser did not appear to decrease his speed until he was quite close to the Ide auto.
Wamser testified that when he first saw the Ide automobile, it was in the northerly or westbound roadway of Blue Mound road and that he immediately applied his brakes, but skidded into the Ide car. The evidence showed that both cars traveled in a straight line to the point of impact, which was in the southerly of the two through-traffic lanes of Glenview avenue. The front end of the Wamser car struck the right front fender and door of the Ide car. The Wamser car left 72 feet, three inches of skid marks on the wet pavement. The cars ended up in the southerly part of the intersection, both facing approximately southeast.
Guy Ide testified that as he proceeded to cross Blue Mound road he did not see any traffic and that he just saw the Wamser vehicle an instant before the impact. It appears that there was nothing to interfere with Guy Ide's view of eastbound traffic on Blue Mound road. Ide further testified that he presumed that he did not make a second observation at the center dividing island on Blue Mound road and that he did not stop before entering the eastbound roadway of Blue Mound road.
Jessie Ide was taken by ambulance from the accident scene to the hospital, and she remained hospitalized from the time of the accident, which occurred on November 15, 1960, until she was discharged on December 13, 1960. As a result of the accident she sustained a fractured clavicle, numerous rib fractures, and bruises over her entire body. She died at her home on January 23, 1961, on her eightieth birthday, sixty-nine days after the accident. There was evidence that Jessie Ide, from the time of the accident until her death, was in pain most of the time and was bedridden even after being released from the hospital.
There was considerable evidence from medical expert witnesses bearing on the physical condition of Jessie Ide. The evidence was conflicting as to whether or not the auto accident was a cause of her death. Two physicians by the name of Stern treated her both before and after the accident and testified that, in their opinion, the accident was a cause of Mrs. Ide's death. The defendants produced medical experts who rendered opinions based on medical records and hypothetical questions, and the substance of such testimony was that the auto accident was not a cause of the death of Jessie Ide. The evidence was that Mrs. Ide suffered from arteriosclerotic heart disease, and the defendants contend that the death of Mrs. Ide was directly due to this condition rather than the accident.
There was also evidence to the effect that for a woman of her age Mrs. Ide was quite active, did all her own housework, and prepared all the meals for herself and her husband, Guy. She had no domestic help prior to the accident.
The jury found both the defendant Wamser and Guy Ide causally negligent and compared the negligence as 54 percent on the part of Wamser and 46 percent as to Guy Ide. The jury awarded Guy Ide damages resulting to him from the death of his wife of $5,000 pecuniary loss and $10,000 for loss of society and companionship. The jury awarded the estate of Jessie L. Ide $8,000 for her pain and suffering resulting from the collision.
Using the option technique, the trial court reduced the jury's award of $10,000 damages to Guy Ide for the loss of the society and companionship of his wife to $3,000 and the jury's award of $5,000 for pecuniary loss to $2,300. The trial court further reduced the jury's award of $8,000 for the pain and suffering of Jessie Ide to $6,500.
The defendants appeal, contesting their liability and, in the alternative, asserting that the damages as reduced are still excessive.
"346.39 FLASHING SIGNALS. Whenever flashing red or yellow signals are used they require obedience by vehicular traffic as follows:
"(1) Flashing red (stop signal). When a red lens is illuminated with rapid intermittent flashes, operators of vehicles shall stop before entering the nearest crosswalk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed is subject to the rules applicable after making a stop at a stop sign.
"(2) Flashing yellow (caution signal). When a yellow lens is illuminated with rapid intermittent flashes, operators of vehicles may proceed through the intersection or past such signal only with caution."
Negligence as a Matter of Law.
Upon defendant Wamser's appeal we are urged to hold that Guy Ide was at least 50 percent negligent by reason of his defective lookout and his failure to yield the right-of-way. In support of this contention, the defendant Wamser points to our recent decision in Schlueter v. Grady (1963), 20 Wis.2d 546, 123 N.W.2d 458, where we held that one entering upon an arterial highway may be held negligent as a matter of law in a degree equal to or in excess of a driver who is already traveling on the arterial highway. See also Plog v. Zolper (1957), 1 Wis.2d 17, 85 N.W.2d 492; Gumm v. Koepke (1938), 227 Wis. 635, 278 N.W. 447.
Ordinarily, a comparison of negligence is for the jury. Vidakovic Campbell (1956), 274 Wis. 168, 175, 79 N.W.2d 806. The jury's findings which have the approval of the trial court will not be disturbed if there is any credible evidence to support such findings. Springen v. Ager Plumbing Heating, Inc. (1963), 19 Wis.2d 487, 489, 120 N.W.2d 692. However, there is authority which recognizes the special dignity which is afforded to one who is traveling upon an arterial. In order to expedite traffic, the law permits drivers on arterial highways to proceed uninterruptedly at a lawful rate of speed with the assumption that other drivers approaching the arterial will yield to them. La France, Law of Right of Way, 25 Wisconsin Bar Bulletin (February, 1952), pp. 11, 14, 15.
Notwithstanding the policy considerations which operate in favor of a driver on an arterial highway, it remains the responsibility of such driver to exercise reasonable care. In the instant case, there was evidence from which the jury could infer that Wamser was proceeding too fast for the conditions which prevailed. The intersection in question was regulated by flashing signals, pursuant to sec. 346.39, Stats. We believe that the legislature intended to impose upon an arterial driver approaching a flashing yellow light a somewhat added caution than that governing other arterial highways.
The jury attributed 54 percent of the negligence to Wamser for his negligence as to speed and management and control. In view of the condition of darkness, the presence of wet streets, the testimony as to his excessive speed, and the presence of a flashing yellow light, we conclude that the jury's assessments, which were sustained by the trial court, as to relative negligence must be affirmed.
The defendants also urge that the accident had nothing to do with Mrs. Ide's death or, in the alternative, that her death was so remote in relation to the accident that the court must deny liability upon the defendants because of considerations of public policy. Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 240, 55 N.W.2d 29.
There was conflicting medical testimony on the subject of the cause of Mrs. Ide's death. Mrs. Ide was eighty years of age and died sixty-nine days after the accident. Because of her pre-existing illnesses, the defendants' medical experts concluded that there was no causal connection between the accident and her demise. In our opinion, the evidence raised a jury question as to the cause of death, and the finding that there was a causal relationship is amply supported by the evidence.
On the issue of remoteness, the mere passage of sixty-nine days between the accident and the death does not warrant our excluding liability for reasons of public policy. We are not shocked to find that the jury believed that there was a causal connection between the accident and the resulting death, and we decline to apply the doctrine of Pfeifer v. Standard Gateway Theater, Inc., supra. See Colla v. Mandella (1957), 1 Wis.2d 594, 600, 85 N.W.2d 345.
In the course of his instructions relative to damages, the trial judge referred to Mrs. Ide's death "as a result of this collision." He also used the phrase "had she not been killed" in referring to Mrs. Ide. The defendants urge that these statements on the part of the trial court were prejudicial comments on the evidence and operated to the detriment of the defendants. We have carefully examined the entire instructions and are satisfied that, as a whole, they fairly submitted the question of the cause of death. Our conclusion with reference to the instructions complained of is that the error was nonprejudicial. Kuklinski v. Dibelius (1954), 267 Wis. 378, 381, 66 N.W.2d 169. In Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis.2d 499, 503, 117 N.W.2d 666, we said:
"A judgment will not be reversed on the ground of misdirection of a jury unless this court is of the opinion after an examination of the entire record that the error has affected the substantial right of the party seeking the reversal. Sec. 274.37, Stats. This is a test of probability, not possibility, requiring the entire evidence to show that had not the error occurred the result would probably have been different.
The jury awarded $8,000 for Mrs. Ide's pain and suffering, and the trial court (using the option technique) reduced this to $6,500. Our review of the evidence persuades us that the trial court's reduction of this award to $6,500 was a proper exercise of its discretion. So too was the court's reduction of the jury's award of $5,000 to $2,300 for Guy Ide's pecuniary loss as a result of his wife's death. The reduction of damages for the loss of society and companionship was not appealed, the trial court having reduced the award therefor to the statutory maximum of $3,000. See sec. 331.04(4), Stats.
The trial court's discretion regarding damages was not abused, and the correct procedure with reference to options was used as set forth in Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis.2d 568, 571, 572, 117 N.W.2d 660.
By the Court. — Judgments affirmed.