March 30, 1964 —
April 28, 1964.
APPEAL from an order and two judgments of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Urban P. Van Susteren of Appleton.
For the respondents there was a brief by Bradford Gabert of Appleton, and oral argument by Stanley R. Gabert.
Action by plaintiff Erdine Willenkamp against defendants, Keeshin Transport System, Inc. (hereinafter "Keeshin"). William B. Egtvedt, and Continental Casualty Company, to recover for the wrongful death of her husband, and action for personal injuries and property damage by plaintiff Francis Hardy against the same defendants. Both causes of action arose out of a motor vehicle collision. The two actions were consolidated for purposes of trial and the instant appeal.
The accident occurred about 1 a.m. on March 8, 1962, on U.S. Highway 45 two miles east of the village of Hortonville. While this highway runs in a southeasterly and northwesterly direction, it will hereafter be assumed that it runs in a general easterly and westerly direction.
According to the record, the following events took place before the collision: One Salter, accompanied by a Mrs. Lokken, was driving his car from Hortonville to Appleton. Experiencing mechanical trouble, he stopped his automobile on the south side of the highway, facing east. At that time a large tractor-semitrailer unit (hereinafter the "semi") owned by Keeshin and operated by Egtvedt, approached from the east, proceeding in a westerly direction. Mrs. Lokken got out of the Salter car and stood in the center of the highway signaling the semi to stop. Egtvedt saw her and brought the semi to a stop on the north side of the highway. Mrs. Lokken then ran around in front of the semi and started to climb into its cab from the right side. Salter then got out of his car and, standing alongside of it, engaged Egtvedt in conversation. In the meantime, Hardy was approaching from the east in a pickup truck owned by him, accompanied by Emrow Willenkamp, husband of the plaintiff Erdine Willenkamp. Hardy and Willenkamp had left a tavern in Greenville, about four miles to the east, and were en route to Hortonville. The Hardy pickup truck collided with the left rear portion of the semi with such force as to demolish the former. Willenkamp was killed and Hardy injured. Prior to trial of the instant actions the insurer of the Hardy truck paid Mrs. Willenkamp $20,000 in return for a covenant not to sue.
The actions were tried to a court and jury. Plaintiffs grounded their claim of causal negligence against Egtvedt on an alleged violation of sec. 346.51 (1), Stats., which requires that no person shall stop a vehicle upon the roadway of a highway outside a business district without leaving an unobstructed width of roadway of at least 15 feet. The testimony was in sharp conflict with respect to whether the semi was stopped entirely on the paved portion of the highway or whether it had its right wheels off on the shoulder. There was another conflict as to whether the semi had pulled even with the Salter car or whether the front end of the Salter car, at the time of the accident, was then 10 to 15 feet to the west of the front of the semi.
The jury returned a special verdict absolving Egtvedt any negligence; Hardy was found 100 percent causally negligent; $10,000 was awarded as damages for the pecuniary loss of Mrs. Willenkamp in the wrongful-death action, but nothing was awarded for loss of society and companionship. Hardy was awarded $1,500 for truck damages and $500 for loss of income, but nothing was awarded for personal injuries. The trial court answered the questions in the verdict with respect to the amount of funeral expenses in the wrongful-death action and the amount of Hardy's medical expenses.
After the verdict plaintiffs moved for a new trial on these grounds: (1) The court committed error in instructing the jury by using the word "may" when "will" should have been used; (2) the verdict was contrary to the overwhelming weight of the evidence; and (3) that the interests of justice require a new trial because the jury's answer to the damage questions reflect "passion, prejudice, bias and perversity." Defendants moved for judgment on the verdict dismissing the complaints. The circuit court, by order dated April 5, 1963, denied plaintiffs' motion for a new trial and granted defendants' motion for judgment on the verdict. Separate judgments were entered April 12, 1963, dismissing the complaint in each action with costs. Plaintiffs have appealed from both the order and the judgments.
Three issues are raised on this appeal:
(1) Did the trial court commit prejudicial error in its instructions to the jury?
(2) Did the jury's answers to the damage questions of the verdict evince such perversity as to require a new trial on all issues?
(3) Should this court exercise its discretionary power to order a new trial in the interest of justice?
The Instructions to the Jury.
As previously stated, the claim of negligence on the part of the defendant Egtvedt is grounded upon a claimed violation of sec. 346.51 (1), Stats. In instructing the jury with respect to the application of this statute, the trial court charged:
Sec. 346.54 (1) provides:
"No person shall . . . stop . . . any vehicle whether attended or unattended, upon the roadway of any highway outside a business or residence district when it is practical to . . . stop or leave such vehicle standing off the roadway, but even the . . . stopping or standing of a vehicle off the roadway of such highway is unlawful unless the following requirements are met: (a) An unobstructed width of at least 15 feet upon the roadway of such highway must be left opposite such standing vehicle for the free passage of other vehicles. . . ."
"You are instructed that a safety statute provides that no person shall stop any vehicle, whether attended or unattended, upon the roadway of any highway outside of a business or residence district when it is practicable to stop such vehicle standing off the roadway. By `roadway' is meant the hard surface or traveled portion of the highway.
"In determining whether or not it was practicable to move the vehicle to a place off the roadway you may consider the physical conditions adjacent to the place where the vehicle was stopped, and any other parking spaces, in any direction, to which the vehicle might reasonably have been taken, as well as the reason for stopping. Having these circumstances in mind, along with all other evidence, you should then consider whether or not William Egtvedt exercised reasonable judgment and discretion in view of all the circumstances; and if you find that he did not exercise reasonable judgment and proper discretion, then you may find him negligent in that respect.
"Another provision of the safety statute provides that the stopping of a vehicle off the roadway is unlawful unless there is an unobstructed width of at least fifteen feet upon the roadway left opposite such standing vehicle for free passage of other vehicles.
"If you find that the semi-trailer was stopped off the roadway, or partly on or off the roadway, you will then determine whether or not in that position there was left an unobstructed width of at least fifteen feet on the roadway opposite the truck. If you find that it was stopped without leaving fifteen feet of the roadway opposite it, then you may find William Egtvedt negligent in that respect." (Emphasis supplied.)
The claimed error is the use of the word "may" in two places when "will" should have been used. Cf. Wis J I — Civil, Part I, 1115. It is contended that this use of the word "may" had the effect of informing the jury that, even though they might find that Egtvedt violated sec. 346.51 (1), Stats., it was nevertheless discretionary with the jury as to whether they were to find him negligent. This quoted portion of the charge standing alone is subject to such interpretation, and, therefore, we concur with the view expressed by plaintiffs' counsel that the word "will" should have been used in the two indicated places where the word "may" was employed. We are unable, however, to agree that this inadvertent error was prejudicial.
In determining whether an error in instructions is prejudicial, the instructions must be considered as a whole. Field v. Vinograd (1960), 10 Wis.2d 500, 103 N.W.2d 671; 5 Am. Jur.2d, Appeal and Error, p. 333, sec. 894.
Earlier in the charge the trial court defined negligence and then followed such definition by this statement:
"In addition to this general rule of negligence there are other rules of law, as well as statutes enacted by the legislature, for the safe operation of motor vehicles and for the exercise of due care for a person's own safety. A person who fails to comply with such rules of law or statutes is negligent, as that term is used in the verdict and in the instructions of the court."
Thus the jury were told that a violation of a safety statute, such as sec. 346.51 (1), Stats., constituted negligence. When this instruction is read in connection with the attacked instruction we deem there was little likelihood of the jury's coming to the conclusion that, even if Egtvedt violated a requirement of sec. 346.51 (1), the jury nevertheless had the discretion to find him not negligent. In passing on the prejudicial effect of an erroneous instruction the test is not the possibility of the jury's being misled, but the probability thereof. Ide v. Wamser (1964), 22 Wis.2d 325, 333, 126 N.W.2d 59; Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis.2d 499, 503, 117 N.W.2d 666.
Plaintiffs contend that the jury's answers to the damage questions of the verdict evince perversity. They particularly stress the award of no damages to Mrs. Willenkamp for loss of society and companionship and to Hardy for personal injuries. Furthermore, they point out that the award of $10,000 for pecuniary loss in the wrongful-death action and $500 for loss of income and $1,500 to Hardy for truck damage are on the low side.
This court has frequently been confronted with the problem of the failure of juries to answer damage questions of the verdict, or finding inadequate damages, after first answering the negligence questions so as to find no liability on the part of the defendant. In Sell v. Milwaukee Automobile Ins. Co. (1962), 17 Wis.2d 510, 519, 117 N.W.2d 719, the court stated:
"The rule is that where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict perverse. Schulze v. Kleeber (1960), 10 Wis.2d 540, 103 N.W.2d 560; Dickman v. Schaeffer (1960), 10 Wis.2d 610, 103 N.W.2d 922; and Goelz v. Knoblauch (1943), 242 Wis. 186, 7 N.W.2d 420."
In this type of situation this court gives great weight to the trial court's opinion with respect to whether the verdict is perverse or fair. Schuster v. Bridgeman (1937), 225 Wis. 547, 551, 275 N.W. 440. The trial judge in the instant cases stated in his memorandum opinion that the jury's answers to the damage questions were not considered by him to be the result of passion and prejudice.
If the trial court had granted a new trial on the ground of perversity because of failure to answer damage questions, this court would be inclined to affirm such an order. Schulze v. Kleeber (1960), 10 Wis.2d 540, 545, 103 N.W.2d 560. This is because of the opportunity of the trial court to observe the trial and sense any atmosphere of prejudice. Odya v. Quade (1958), 4 Wis.2d 63, 73, 90 N.W.2d 96.
The $10,000 awarded in the wrongful-death action for pecuniary loss and the $1,500 allowed Hardy for truck damage are on the low side and it is arguable whether they are inadequate. The jury could well find from the evidence that Hardy's injuries were not severe. They consisted of a severe laceration on the bridge of the nose, extending to and including the left upper eyelid, and smaller lacerations and contusions. Hardy did complain of persistent headaches, but the jury would have been justified in concluding there was no permanent disability of any kind and that any award for his personal injuries must be confined to pain and suffering. We believe this may well have been a case where the members of the jury were aware that, by finding no negligence on Egtvedt's part, there could be no recovery by plaintiffs, and that they, therefore, could avoid the troublesome task of evaluating such intangibles as pain and suffering, and loss of society and companionship, by finding no damages for those items.
Plaintiffs cite Mainz v. Lund (1963), 18 Wis.2d 633, 119 N.W.2d 334. In that case a new trial was granted in the interest of justice because an inadequate award of damage was coupled with a finding of no negligence on the part of the defendant which was against the great weight of the evidence. While plaintiffs assert that the finding of no negligence on the part of Egtvedt was against the great weight of the evidence we are unable to agree with such assertion.
It is our conclusion that the instant verdict was not the result of perversity.
New Trial in Interest of Justice.
It is well settled that this court will not exercise its discretion under sec. 251.09, Stats., to order a new trial in the interest of justice unless it has been convinced that there has been a probable miscarriage of justice, viewing the case as a whole. Mack Trucks, Inc., v. Sunde (1963), 19 Wis.2d 129, 138, 119 N.W.2d 321; Gile v. Widholm (1962), 17 Wis.2d 275, 280, 116 N.W.2d 249; Scalzo v. Marsh (1961), 13 Wis.2d 126, 146, 108 N.W.2d 163. Our review of the record in this case does not impress us that there is a reasonable probability that justice has miscarried. Rather it is a case where the testimony as to negligence was sharply in conflict. In such a case the credibility of the witnesses was clearly for the jury.
By the Court. — The order and judgment appealed from are affirmed.