In Mackowski v. Milwaukee Automobile Mut. Ins. Co. (1957), 275 Wis. 545, 82 N.W.2d 906, this court said (p. 551): "The inference of terrific speed at the point of collision was supported by photographs in the record showing an extraordinary degree of demolition of the two cars, and thus evidencing exceptional force of impact."Summary of this case from Rodenkirch v. Johnson
April 8, 1957 —
May 7, 1957.
APPEAL from a judgment of the circuit court for Green Lake county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by James L. McMonigal of Berlin.
For the respondent there was a brief by Milton Spoehr of Berlin, and Lehner Lehner of Princeton, and oral argument by Mr. Spoehr and Mr. Philip Lehner.
Auto accident. A collision occurred about 1:10 a. m. on State Trunk Highway 23 about four miles east of Green Lake and just west of Ripon, between a Buick car driven by plaintiff's decedent Mackowski and a 1954 Ford driven by defendant's insured Stollfus. Both drivers were killed almost instantly. There was no, surviving witness of the accident. Highway 23 runs in a general east-west direction. Stollfus was driving toward the east, and there was evidence from which it could be inferred that Mackowski was going west. When the colliding cars came to rest, the Stollfus car was off the road on the south side against a culvert, with its front end badly wrecked, particularly on the left side. The Mackowski car was on the north shoulder 210 feet west of the other car, headed northwest and very badly smashed all along the left side.
One Kemnitz, a nineteen-year-old navy man, testified in part as follows: He was en route from his home west of Princeton to the Great Lakes Naval Station, driving a 1949 Ford. He reached Princeton about 10:30 at night and there happened to meet his friend Stollfus, age twenty-one. The two then spent a couple of hours together in a bowling alley and a tavern where each had four or five small bottles of beer. About 12:45 a. m. they left the tavern and Stollfus. said to Kemnitz, "I'll beat you to Ripon," whereupon they took off for Ripon in their respective cars. After leaving Princeton Kemnitz, who was in the lead, drove as fast as his car would go, which he estimated at over 90 miles per hour, and maintained that speed all the way to Green Lake. Stollfus followed him closely. They both slowed down through the village of Green Lake and then speeded up again. About a mile east of Green Lake Stollfus passed Kemnitz "like a shot" and Kemnitz looked at his speedometer and saw it registered 95 miles per hour. Kemnitz continued to drive at that speed for a mile or two, but Stollfus gradually drew away from him, and he last saw Stollfus' taillight disappearing around a bend in the road at a tavern about three quarters of a mile west of the scene of the accident. Realizing he could not match Stollfus' speed, Kemnitz then slowed down to 60 or 70 miles per hour. A couple of minutes later he came to the scene of the accident, and stopped to investigate. He was the first man on the scene.
There was testimony by Kemnitz, by the operator of a near-by tavern who reached the scene within a few minutes after the accident, and by two police officers who arrived shortly afterwards from which the jury could find that debris such as glass, dirt, and pieces of metal was lying in the north lane of the concrete highway between the two wrecked cars. There was also testimony that there was a fresh gouge in the concrete in the north lane, and a mark or marks on the concrete leading from near the gouge in the north lane toward the Stollfus car.
Much of the above-summarized testimony was disputed by the defendant, who sought to discredit it by other testimony, by pointing out certain improbabilities claimed to be inherent in it, and by a written statement signed by Kemnitz ten days after the accident, in which he told a very different story. Defendant moved for a directed verdict at the close of the plaintiff's case, and again after both sides had rested. Ruling on the motions was reserved.
The jury found, in answer to the questions of the special verdict, (1) that Stollfus and Kemnitz were not participating in a race or speed or endurance test at or immediately preceding the collision, (2) that Stollfus was causally negligent with respect to speed, management and control, and failing to yield half of the main-traveled portion of the highway to Mackowski, (3) that Mackowski was negligent with respect to lookout, but his negligence was not a substantial factor in causing the collision, and (4) that 80 per cent of the negligence was attributable to Stollfus and 20 per cent to Mackowski.
After verdict defendant moved for judgment notwithstanding the verdict, or, failing that, for a new trial on several grounds. All defendant's motions were denied, and judgment was entered for the plaintiff on the verdict. Defendant appeals.
We find no error and therefore affirm the judgment for the plaintiff.
1. The jury's finding that Stollfus was negligent with respect to speed is abundantly supported in the record. Reference need only be made to the testimony of the witness Kemnitz as summarized in the foregoing statement of facts.
It is contended that Kemnitz's observation of Stollfus' speed was too remote from the time and place of the accident, and hence the testimony should have been excluded or stricken. Kemnitz testified that Stollfus passed him at well above 95 miles per hour at a point about three miles west of the place of collision and gradually drew away from him, and that the last he saw of the Stollfus car was when it rounded a curve three quarters of a mile west of the place of the accident. Reference is made to Neumann v. Evans, 272 Wis. 579, 76 N.W.2d 322, where speed at an intersection was in issue, and we held that a trial court had not abused its discretion in excluding testimony that the driver had been seen going 50 miles per hour at a point one quarter of a mile before the intersection.
The present case is very different than Neumann v. Evans, 272 Wis. 579, 76 N.W.2d 322. There the excluded testimony was of a momentary observation of speed on an open road, whereas the question in issue was the speed at an intersection, a substantially different situation. In the present case, the Kemnitz testimony showed a continuous pattern of utterly unreasonable and unlawful speed for some ten miles (interrupted at the village of Green Lake), and the point of collision was still open country road. In such circumstances, the jury might reasonably infer that the consistent pattern of speed adopted over 10 miles of open road was not abandoned in the 11th mile. We think the trial court was well within the bounds of reasonable discretion in allowing the jury to consider the testimony.
Appellant attacks the testimony of Kemnitz as inherently incredible, and argues that the speeds of 95 and 105 miles per hour to which he testifed [testified] would have been impossible to maintain on a highway with as many curves, albeit minor ones, as were shown to exist in Highway 23 for several miles west of the place of the collision, at several of which were signs advising maximum speed of 50 or 55 miles per hour. Serious conflicts are also pointed out between the testimony given by Kemnitz at the trial and a statement made by him ten days after the accident. It is also said that the jury, in giving a negative answer to the question whether the boys were racing at or immediately preceding the collision, must have disbelieved Kemnitz's testimony on that point.
We consider, however, that the weight to be given to the Kemnitz testimony was for the jury. While some features of it strain one's credulity, and Kemnitz was a smart-aleck witness, we cannot say as a matter of law that he was so completely unworthy of belief that his testimony should have been excluded or stricken from the record, or that the jury could not properly believe most of it. Whether his testimony at the trial was closer to the truth than the story he told in his statement to the investigator a few days after the accident was for the jury to determine. The jury could make a large allowance for exaggeration in the testimony as to the continuous 95 and 105 miles per hour speed, and still find that Stollfus was going much faster than the permissible maximum of 55 miles per hour. On such a matter, suspected exaggeration does not necessarily deprive testimony of all weight as a matter of law. Indeed, wilfully false testimony on one point does not require the jury to reject all of the witness' evidence. Mercer v. Wright, 3 Wis. *645, *647; Miller v. State, 139 Wis. 57, 82, 83, 119 N.W. 850.
The inference of terrific speed at the point of collision was supported by photographs in the record showing an extraordinary degree of demolition of the two cars, and thus evidencing exceptional force of impact.
2. The finding of the jury that Stollfus was negligent in failing to yield one half of the main-traveled portion of the highway to. Mackowski is supported by the testimony that shortly after the accident debris such as glass, dirt, and pieces of metal was lying in the north lane of the concrete highway, between the two wrecked cars, and that there was a fresh gouge in the concrete in the north lane and a mark or marks leading from that lane toward the wrecked Stollfus car. The left side of the Mackowski car was practically demolished, as was the left front portion of the Stollfus car. From the facts that Mackowski had been seen in Ripon a few minutes before the accident, that his home was in Berlin, and that a main route to Berlin led westward on Highway 23 at the place of the accident, it could reasonably be inferred that Mackowski was headed west at the time of collision. Being dead, he is presumed to have exercised due care in all respects ( Weber v. Mayer, 266 Wis. 241, 249, 63 N.W.2d 318), and hence to have been driving in the north lane. There was no evidence of, any want of due care on his part to rebut that presumption. In the circumstances, and in the absence of any other satisfactory explanation of the location of the debris and marks, the jury could properly infer that the cars collided in the north lane, the left front of the Stollfus car hitting the side of the Mackowski car just after Stollfus had turned a little to his right to negotiate the curve in the road at that place.
3. Since the findings of negligence on the part of Stollfus with respect to, speed and failing to yield one half of the road are sufficient to sustain the verdict, we need not consider the finding that he was negligent with respect to management and control. It may be noted that evidence permitting the inference that in rounding a curve to the right the driver swung over the line into the left traffic lane would support a finding that he failed to exercise ordinary care in the management and control of his car. Leiner v. Kohl, 261 Wis. 159, 162, 52 N.W.2d 154.
4. Appellant challenges the jury's finding that the negligence of Stollfus with respect to speed was a substantial factor in causing the collision, and relies on a statement in Clark v. McCarthy, 210 Wis. 631, 635, 246 N.W. 326, that where two cars proceeding on a highway in opposite directions collide, speed alone cannot cause a collision in the absence of some other contributing factor. That proposition has no relevance in the present case, for here there was evidence not only that Stollfus was driving at an excessive speed, but also that he invaded Mackowski's proper lane of travel, which sufficiently distinguishes Clark v. McCarthy (see East Wisconsin Trustee Co. v. O'Neil, 255 Wis. 528, 532, 39 N.W.2d 369). In Clark v. McCarthy it was recognized that excessive speed may cause a head-on collision if it contributes to the speeder's presence on the wrong side of the road. ( 210 Wis. at p. 635.) In the present case the jury may have believed, and properly, that Stollfus' excessive speed caused him to swing over the center line and into the left lane as he rounded the rather pronounced curve just west of the point of collision.
5. When the testimony of Kemnitz with respect to speed was offered and objected to on the ground of remoteness, the trial judge said in chambers that he would sustain the objection were it not for the question of a speed contest or race, but with that in the picture, he would have to overrule the objection. At the close of the trial, the court, on its own motion, submitted a question in the special verdict as to whether the two boys were racing. The jury having answered that question in the negative, appellant now contends that it should have judgment or a new trial, because the jury's finding showed that the basis on which the court admitted evidence of speed was unfounded.
We find no error. The court was warranted in receiving the testimony on speed, whether or not there was a race. The ruling was not vitiated by a remark in chambers. Moreover, the jury's negative answer to the question whether the boys were racing "at or immediately preceding the collision" does not necessarily indicate that disbelief of Kemnitz's testimony that they had been racing most of the way from Princeton. He testified that when he lost sight of Stollfus' taillight, he slowed down, and in effect abandoned the contest. Thus the jury's finding that they were not racing "at or immediately preceding the collision" is not inconsistent with a belief that they had been racing for many miles.
6. The special verdict was not invalidated by the fact that while the jury found that Mackowski was negligent with respect to lookout but that such negligence was not a substantial factor in causing the collision, they also found that 20 per cent of the total causal negligence was attributable to Mackowski. There was no evidence to support the finding that he was negligent. The answer to the question on comparison of negligence was properly stricken as surplusage. Statz v. Pohl, 266 Wis. 23, 29, 62 N.W.2d 556, 63 N.W.2d 711.
By the Court. — Judgment affirmed.