In McCarty v. Weber, 265 Wis. 70, 60 N.W.2d 716 (1953), the Wisconsin court construed a presumption of due care like the one we had prior to enactment of § 602.04.Summary of this case from Steinhaus v. Adamson
October 6, 1953 —
November 3, 1953.
APPEAL from a judgment of the circuit court for Sauk county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellant there was a brief by Weisman Weisman of Racine, and oral argument by Jacob M. Weisman.
For the respondents there was a brief by Langer Cross of Baraboo, and oral argument by Clyde C. Cross.
The action is one to recover damages for wrongful death suffered in an automobile collision.
Dr. Finnegan had attended his patients in the Reedsburg Hospital and had started back to his home in Wonewoc in the forenoon of the day of the accident, driving westerly on West Main street in Reedsburg. At the same time Norman Weber, sixteen years old, came driving his father's milk truck east on the same highway. When the two cars came in sight of each other they were approximately 1,350 feet apart. They collided and Dr. Finnegan was killed. A number of people had glimpses of each vehicle before the collision but gave no evidence of importance on the questions presented by the appeal. The only evidence concerning the manner in which Finnegan drove is that of Norman Weber. He said that when the doctor came in sight his car was weaving from side to side in the street, and then straightened out and proceeded on the south side, Finnegan's left. Weber could not make up his mind whether or not the doctor was intending to turn into some driveway on the south side of the road or whether he intended to go by. There was no other traffic upon the highway and no parked cars so Weber brought his milk truck to about the center of the road, which was approximately 37 feet wide, leaving a clear space of approximately 15 feet on the north side of the highway, Finnegan's right-hand side, and a little less than that on the south side, to permit Finnegan to pass him on whichever side Finnegan chose. Some distance before reaching the Weber milk truck Finnegan swerved over onto his proper side but just before passing the truck he started again across the center line, in a southwesterly direction, and ran into the left front corner of the truck. Because the truck was somewhat over the center line the collision occurred on Finnegan's proper side of the road. Marks from Finnegan's tires tend to corroborate Weber's testimony since they come toward the center line, angling across the road from the northeast toward the southwest to the point of collision. Finnegan made no statements concerning the accident before his death. Action was brought by his daughter as special administratrix of his estate. The special verdict contained the usual questions concerning causal negligence. The jury found that Weber was causally negligent by reason of failing to yield one half of the main-traveled road to a vehicle approaching in the opposite direction and that this was causal. They absolved him of negligence as to lookout, management and control, and speed. They put his negligence at 40 per cent of the cause of the collision. The jury found Dr. Finnegan causally negligent as to lookout and as to management and control, and not causally negligent as to speed or to yielding half the highway. His negligence was assessed at 60 per cent.
There is evidence to sustain all the findings. The most controversial of these concerns Dr. Finnegan's lookout. If there is no evidence to sustain that finding then the case must be sent back for new trial because the finding affects the proportions of negligence. The appellant submits that no one can say what Dr. Finnegan saw or did not see, and contends that since he is dead he is presumed to have exercised due care and the mere fact that he collided with the milk truck is not evidence that he was negligent in lookout. However, the weaving of the Finnegan car in and out of its own traffic lane is characteristic of drivers whose attention is diverted from the road and who are not looking where they are going, as every automobile user knows.
"`Of course, jurors are not restricted to a consideration of the facts directly proven, but may give effect to such inference as reasonably may be drawn from them. Nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.'" De Keuster v. Green Bay W. R. Co. (1953), 264 Wis. 476, 479, 59 N.W.2d 452.
The failure, too, of Dr. Finnegan to avail himself of the ample room to pass the Weber truck on his proper side of the road also indicates that he was not looking along the street in the direction in which he was traveling, which is indispensable to the exercise of due care.
"In view of the favorable opportunity which Lemke [the driver] had to observe, in ample time to avoid a collision, the existing circumstances which rendered his manner of approach highly dangerous, and of his apparent failure to avail himself of that obvious opportunity, it was within the province of the jury to find that he failed to exercise due care for his own safety by keeping a proper lookout and was therefore causally negligent in this respect." Haase v. Employers Mut. Liability Ins. Co. (1947), 250 Wis. 422, 429, 27 N.W.2d 468.
All presumption of due care in lookout went out of the case when the evidence sufficient to support a contrary finding came in. In Reichert v. Rex Accessories Co. (1938), 228 Wis. 425, 438, 279 N.W. 645, we adopted Prof. Wigmore's rule expressed as follows:
"It must be kept in mind that the peculiar effect of a presumption `of law . . . is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge's requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury's hands free from any rule.'"
Appellant also submits that because the milk truck was in the center of the highway Dr. Finnegan was confronted with an emergency and his method of meeting it does not constitute negligence. We cannot find evidence in the record that presents him with an emergency to be dealt with. If anything, the shoe is on the other foot. Nor can we discover perversity in the verdict.
We consider the questions raised here were for the determination of the jury and the jury's answers have settled the issues.
By the Court. — Judgment affirmed.