Argued October 7, 1971. —
Decided November 2, 1971.
APPEAL from an order of the circuit court for Milwaukee county: MAX RASKIN, Circuit Judge. Affirmed.
For the appellants there was a brief by George S. Stupor and Michael P. Stupar, and oral argument by Thomas A. Schulz, all of Milwaukee.
For the respondents there was a brief by Borgelt, Powell, Peterson Frauen, attorneys, and Donald R. Peterson of counsel, all of Milwaukee, and oral argument by Donald R. Peterson.
This appeal arises out of a truck-pedestrian accident which took place on the afternoon of November 2, 1965, at the intersection of West Forest Home Avenue and South 35th Street in the city of Milwaukee. On the day in question appellant, Gregory Rodenbeck, then a fifteen-year-old high school student, was returning home from school on the bus, the bus going south on South 35th Street. He left the bus when it arrived at the northwest corner of the West Forest Home intersection. It was necessary at this point for Gregory to change buses and as he arrived at the corner he saw the bus he wished to catch arriving at the northeast corner of the intersection on West Forest Home Avenue, going southwesterly. Gregory began to cross 35th Street in order to catch the second bus. He crossed in front of the bus he had just been on but as he started beyond the bus he was struck by a ready-mix cement truck driven by respondent Russell Schermerhorn who was at the time driving the truck as part of his employment with the Tews Lime Cement Company. Gregory was seriously injured.
At the jury trial the principal dispute was over who had the green light — Gregory or Schermerhorn — at the time of the accident. In a special verdict the jury found Schermerhorn not negligent, Gregory 100 percent causally negligent, and awarded $3,194 to Alfred Rodenbeck for medical expenses and $6,500 to Gregory. Defendant's motion for judgment on the verdict was granted, and the complaint was dismissed. Appellants' motion to set aside the judgment and grant a new trial was denied in all respects. The Rodenbecks appeal from the order denying that motion.
Three issues are raised on this appeal:
1. Is there any credible evidence to support the jury's verdict?
2. Was defense counsel's closing argument so prejudicial to plaintiff as to require a new trial?
3. Should this court invoke its power under sec. 251.09, Stats., and reverse the order as a matter of discretion?
Appellants contend that the jury verdict was not supported by the evidence. On review here when a jury verdict is challenged we have repeatedly stated the rule to be:
"[W]e must judge the jury verdict in the light of the familiar rules that (1) a jury verdict will not be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings, (2) this is particularly true when the verdict has the blessing of the trial court, and (3) the evidence is to be viewed in the light most favorable to the verdict."
Here the record demonstrates that Gregory crossed against the light in an effort to catch the second bus on the opposite corner of the intersection. Immediately prior to being struck Gregory could not be seen by the drivers of the oncoming vehicles because he was behind or in front of the bus. The truck driver slowed down when approaching the intersection, but when the two cars ahead of him in the same lane safely entered the intersection, respondent continued forward, hitting Gregory as he ran out from in front of the bus into the street. This evidence supports the verdict that the accident was caused completely by Gregory's negligence. The evidence is credible and we have no hesitation in upholding the jury verdict.
Defense counsel's closing argument.
Appellants argue that defense counsel's references in closing argument were prejudicial when he referred to the wealth of Alfred Rodenbeck and to the fact that a verdict for plaintiff would result in increased automobile insurance rates. In making this argument appellants face three hurdles, none of which they can clear. First, no objection was made to counsel's argument. Absent such an objection, this court will not consider the issue. Second, no record was made of the allegedly prejudicial closing argument. The usual rule is that absent a showing in the record of a prejudicial argument this court will not consider the alleged error. Third, the circuit court specifically found that the closing argument made here by defense counsel was proper. The rule, is as stated in the Hanes Case that absent a showing in the record of a prejudicial argument, the trial court's decision on the issue will not be disturbed.
Hanes v. Hermsen (1931), 205 Wis. 16, 22, 236 N.W. 646; Nolop v. Skemp (1959), 7 Wis.2d 462, 466, 96 N.W.2d 826; see also: Zweifel v. Milwaukee Automobile Mut. Ins. Co. (1965), 28 Wis.2d 249, 256, 257, 137 N.W.2d 6.
Supra, footnote 3.
In an effort to overcome these obvious difficulties, appellants submit an affidavit from Gregory's mother stating that the closing argument of defense counsel was prejudicial. Affidavits may not be used to prove facts not of record. This rule includes affidavits submitted to the court in an effort to overcome the lack of a record of a closing argument. But even if considered here, the affidavit of an interested party would be overcome by the specific finding to the contrary by the trial court. We conclude, therefore, that the appellants have not demonstrated that the closing argument was prejudicial.
Reversal in the interest of justice under sec. 251.09, Stats.
The final argument made by appellants is that this court should invoke its discretionary power under sec. 251.09, Stats., and reverse the order of the trial court. This court will not exercise this discretion unless it is convinced that there has been a probable miscarriage of justice — viewing the case as a whole.
Appellants advance two contentions as to why they believe there has been a miscarriage of justice here. The first, the defense counsel's alleged closing argument, has already been considered. Second, appellants' appellate counsel, different from trial counsel, now contends that trial counsel failed to adequately prepare the case. Our review of the trial record shows that there is no merit in this contention. There has been no probable miscarriage of justice. The case was litigated on the basis of whether Gregory was crossing with or against the light. This was a jury question answered in favor of defendants and against Gregory.
By the Court. — Order affirmed.