November 1, 1961 —
November 28, 1961.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there were briefs by Phillips Richards of Kenosha, and oral argument by Charles J. Richards and David L. Phillips.
For the respondents there was a brief by Whaley Whaley of Racine, and Leo E. Vaudreuil of Kenosha, and oral argument by Mr. Vilas H. Whaley, Mr. John W. Whaley, and Mr. Vaudreuil.
Action commenced by plaintiff Maurice Van Wie against defendants Sylvester Hill and Aetna Casualty Surety Company for personal injuries sustained in a collision between a Ford truck driven by plaintiff and a station wagon driven by Hill. Trial by jury was had and from a judgment on the verdict dismissing the complaint, plaintiff appeals.
The accident occurred at the "T" intersection of Wood and Birch roads in the town of Somers, Kenosha county. Wood road runs north and south and is intersected on the east by Birch road which runs east and west. Wood road has shoulders seven to 10 feet wide. Both roads are paved with blacktop and approximately 20 to 22 feet wide. This is an agricultural area and the intersection is open so far as visibility is concerned. There are no traffic-control signs or signals at the intersection. On Birch road, at a distance of 465 feet east of the intersection, there is a flashing yellow caution light. Directly beneath this light there is a diamond-shaped sign with an arrow indicating a 90-degree turn to the right. Beneath the sign there is a 20-mile per hour speed-limit sign. Other than this, there is no posted speed limit on Birch road. The posted limit on Wood road is 45 miles per hour. At the time of the accident the roads were dry and the weather was clear.
At about 10:30 a.m. on Sunday, November 10, 1957, plaintiff was driving west on Birch road on his way to the city of Kenosha, which is located south of the intersection on Wood road. His pickup truck was equipped with a winch at the rear, the chain of which was attached to the front end of a disabled Oldsmobile which plaintiff was hauling to a junk yard. The front wheels of the Oldsmobile were raised above the level of the road.
Sylvester Hill, the defendant, approached the intersection from the south on Wood road. The cars collided on the west shoulder of Wood road about 10 feet south of the extension of the center line of Birch road. Damage to the vehicles was at the front and right side of the Van Wie truck and the right front of the Hill automobile. Plaintiff suffered a retrograde amnesia as the result of his injuries.
Hill was alone in his automobile. He testified that as he approached the intersection, at a point about a half mile to the south, he observed plaintiff's truck coming from his right on Birch road, at a point west of the caution light. Hill's speedometer was not in working order, but he testified that he was traveling about 25 to 30 miles per hour. He testified that he reduced his speed to between 20 and 25 miles per hour, that he watched the Van Wie truck intermittently and as the truck arrived at the intersection it appeared to stop. When Hill was about two and one-half car lengths from the intersection he saw the truck suddenly "lurch out in front of me." Hill blew his horn, applied his brakes, swerved onto the west shoulder of Wood road, and stopped. His right rear wheel was the only part of his car still on the roadway. At this point Van Wie's truck traveled across Wood road and struck Hill's car in the right front, tipping the car over on its side against a bank that was parallel with the highway.
The Hill car had been followed to the Birch road intersection by an automobile in which one James Durrah was a passenger. Durrah testified: Hill was about 60 feet in front of him and traveling between 25 and 30 miles per hour. Durrah was 300 feet south of the intersection when he saw the plaintiff's truck about 300 feet east of the intersection. He estimated the truck's speed to be about 55 miles per hour. The truck "kept on moving, going west, and as it approached the intersection it seems as though it didn't stop." He saw Hill drive his car across the highway onto the left shoulder and then the collision occurred. The towed car broke loose as the truck swerved around.
After the accident the Van Wie truck was found in the southwest quarter of the intersection facing southwest. The Hill station wagon was found in the west ditch of Wood road, about 14 feet west of the road edge and 10 feet south of the extension of the center line of Birch road, tipped on its left side. Plaintiff was found 10 to 15 feet south of the station wagon and southwest of the truck, lying partially on the road, with his head on the shoulder. Defendant was found in his car.
By special verdict the jury found plaintiff negligent as to speed and management and control, but causally negligent only as to management and control. Question 3 was as follows:
"Just before the collision was Sylvester Hill negligent with respect to:
"(a) Speed? Answer: Yes.
"If you have answered question 1 (a) [as to plaintiff's negligence with respect to speed] `Yes' then DO NOT answer the following subdivision (b), but if you have answered question 1 (a) `No' then DO answer the following subdivision (b):
"(b) Yielding the right of way? Answer: _____
"If you have answered subdivision (b) of this question `Yes,' then DO NOT answer the following subdivision (c); on the other hand, if you have not answered subdivision (b) of this question or you have answered subdivision (b) of this question `No,' then DO answer the following subdivision (c):
"(c) Management and control? Answer: Yes."
In question 4, the causation question as to Hill's negligence, the jury answered "Yes" with respect to speed and management and control, but did not answer the subdivision with respect to yielding the right of way. It attributed 51 per cent of the total negligence to plaintiff and 49 per cent to Hill. Upon that verdict the trial court entered judgment for the defendant, dismissing plaintiff's complaint.
Further facts will be stated in the opinion.
Appellant contends that the evidence does not support the finding as to his negligent management and control. The evidence indicates that the impact occurred on the west shoulder of Wood road. Respondent's car was stopped and completely off the surface of Wood road, except for the right rear wheel. The impact occurred to the right front of respondent's car and to the front and right side of appellant's truck. Appellant apparently intended to turn left onto the west roadway of Wood road, and to proceed south to the city of Kenosha. From this evidence the jury could reasonably have inferred that appellant failed to properly manage and control his truck so as to keep on the road surface while negotiating his left turn. If appellant could have kept on the road surface, he probably could have avoided the accident.
Also, there was testimony that appellant's truck lurched out into the intersection. An automobile, its front wheels suspended, was being towed by appellant's truck. Photographs in evidence show damage to the rear of the truck, and from this it could reasonably be inferred that when appellant attempted to stop before entering the intersection, the inertia of the car he was towing propelled him forward. Thus, the jury could reasonably have concluded that appellant, considering the fact that he was towing a heavy, freewheeling car, failed to exercise the requisite degree of care in operating his truck with respect to speed and braking. Appellant and respondent approached the intersection at approximately the same time. By virtue of sec. 346.18(1), Stats., appellant, being the vehicle operator on the right, had the right of way. However, the last sentence of this statute provides:
"The operator of any vehicle driving at an unlawful speed forfeits any right of way which he would otherwise have under this subsection."
The jury found appellant negligent with respect to speed — in effect, finding that appellant forfeited his right of way under sec. 346.18(1), Stats. Appellant contends that this finding is not supported by the evidence. Photographs in evidence indicate that both vehicles were extensively damaged. Appellant was thrown from the truck and sustained very severe injuries. Respondent's car was stationary at the moment of impact. Appellant's truck, and the car he was towing, supplied all the moving force during the impact. From this evidence alone the jury could have reasonably inferred that appellant had been traveling at an excessive rate of speed. Mackowski v. Milwaukee Automobile Mut. Ins. Co. (1957), 275 Wis. 545, 82 N.W.2d 906.
As recited above, the witness Durrah testified that he estimated appellant's speed to be 55 miles per hour as the truck approached the intersection. The trial court instructed the jury that the speed limit on Birch road was 55 miles per hour, but that sec. 346.57(3), Stats., requires motor-vehicle operators to reduce speed at an intersection. The jury could have concluded that appellant failed to approach the intersection at an appropriately reduced speed. The trial court did not instruct the jury as to the effect of the yellow caution light or the 20-mile per hour speed-limit sign located on Birch road east of the intersection. This omission was favorable to appellant. Thus, there is no question on this appeal of the effect that light and sign had with respect to appellant's duty as to speed.
Appellant contends that Durrah's testimony as to appellant's speed is incredible because he testified that appellant did not stop when he got to the intersection. He argues that considering the speeds of the parties as estimated by Durrah and the estimated distances of both parties from the intersection, the appellant would have been past the point of impact by the time respondent arrived. However, Durrah was not positive that appellant did not stop. Respondent testified that appellant did attempt to stop. The jury could have believed respondent's testimony on this point. Thus, the extra seconds could be accounted for and Durrah's testimony would be plausible.
It is further argued that since the jury found appellant's speed not causal, it must be held that he had the right of way. We cannot agree. The jury did not answer the question on Hill's failure to yield the right of way because it was instructed not to do so if it had found Van Wie negligent as to speed. This method of submitting the question has been approved by this court. Burkhalter v. Hartford Accident Indemnity Ins. Co. (1955), 268 Wis. 385, 388, 68 N.W.2d 2, 68 N.W.2d 732. This court has never held that negligent speed must be found causal in order to deprive a driver of his statutory right of way.
Appellant further argues that the apportionment of causal negligence by the jury is not supported by the evidence. The jury attributed 51 per cent causal negligence to appellant and 49 per cent to respondent. As stated previously, there is credible evidence to support the jury's finding of causal negligence on the part of appellant. It is not an unreasonable conclusion that appellant was more negligent than respondent even though respondent was found causally negligent in two respects and appellant in only one. The jury could have concluded that if appellant had properly managed and controlled his truck he could have avoided the accident. This court has stated:
"The comparison of negligence is determined not by the kind or character or the number of respects of causal negligence but upon the degree of the contribution to the total such negligence to the occurrence of the accident attributable to the persons involved." Grana v. Summerford (1961), 12 Wis.2d 517, 521, 107 N.W.2d 463. See also Evjen v. Packer City Transit Line (1960), 9 Wis.2d 153, 100 N.W.2d 580.
The comparison here was for the jury and there is credible evidence to support its finding. The other questions raised by appellant with respect to the comparison question are of no merit.
Appellant argues that the trial court committed several errors with respect to submission of issues and instructions to the jury. The record does not disclose any requests made by appellant's counsel either for questions to be submitted in the special verdict or for the instructions he now maintains should have been given. Thus, appellant is now precluded from raising these questions. Grinley v. Eau Galle (1956), 274 Wis. 177, 79 N.W.2d 797.
We see no reason to grant appellant's request for a new trial in the interests of justice under sec. 251.09, Stats. There is nothing in the record to indicate a probable miscarriage of justice. Appellant contends that a new trial is necessary under this section since the trial court did not instruct the jury with respect to a presumption of due care on the part of Van Wie because of his retrograde amnesia. But there was credible evidence to rebut this presumption.
The case was fully tried, the issues involved were for the jury, and there is credible evidence to support its findings.
By the Court. — Judgment affirmed.