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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 12, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
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No. 94-3389-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
SYLVIA A. GREGORY,
Plaintiff-Appellant,
COUNTY OF MILWAUKEE,
a municipal
corporation,
Plaintiff,
v.
MILWAUKEE TRANSPORT
SERVICES, INC.
and COUNTY OF
MILWAUKEE,
a municipal
corporation,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Reversed
and cause remanded with directions.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Sylvia A. Gregory appeals from a judgment dismissing
her personal injury claim against Milwaukee Transport Services, Inc., and
Milwaukee County pursuant to Milwaukee Transport's motion for a directed
verdict. The judgment turned on the
trial court's evaluation of the credibility of the witnesses and its assignment
of weight to conflicting evidence—matters properly within the province of the
jury. Accordingly, we reverse the
judgment and remand this matter for trial.[1]
BACKGROUND
Gregory initiated this
lawsuit after sustaining injuries while riding on a bus operated by Milwaukee
Transport. At trial, Gregory testified
that she boarded a Milwaukee Transport bus on May 25, 1991, at approximately
3:50 p.m. She stated that the bus made
a sharp turn to the right as she made her way to a seat, causing her to lose
her balance and fall. On
cross-examination, Gregory could not recall where on the bus her fall occurred,
whether or not she was holding onto a handrail when the bus turned, or the
condition of the bus's floor that day.
Gregory also admitted that she could not remember giving a deposition in
the case. On re-direct, Gregory told
the jury that she had difficulty remembering things due to a severe beating she
had sustained prior to the accident.
Carol Cabrera, a friend
and witness of Gregory's, testified that she boarded the bus with Gregory on
the day of the accident. She told the
jury that the bus swung out and made a sharp right turn as Gregory made her way
to a seat while steadying herself with a support bar. On cross-examination, Cabrera admitted that she had made a
statement before trial, describing the turn as “not a real fast sharp turn, but
I would say it was kind of a quick turn.”
The bus driver, Michael
Reineiro, testified that it rained on the day of the accident and that the
floor of the bus was wet. He denied
swinging his bus out to turn right at the intersection on the day that Gregory
fell. Reineiro also denied suddenly
braking during the turn, testifying that the bus was traveling at less than
five miles per hour during the turn.
Finally, Jacqueline
Marie Wigley, another passenger on the bus, testified. She told the jury that prior to the bus
pulling away from the curb she overheard Cabrera ask Gregory whether “she was
all right or was she having one of her fainting spells.” Wigley testified that the bus then proceeded
to make a “regular smooth turn.” In
contrast to the bus driver's testimony, Wigley testified that the floor of the
bus was dry at the time of the accident.
At the close of the
evidence, Milwaukee Transport moved for a directed verdict. The trial court granted the motion and
entered judgment dismissing Gregory's claim.
STANDARD OF REVIEW
The
trial court should grant a motion for a directed verdict only “‘where the
evidence is so clear and convincing that a reasonable and impartial jury
properly instructed could reach but one conclusion.'” Leen v. Butter Co., 177 Wis.2d 150, 155, 501 N.W.2d
847, 848 (1993) (citation omitted).
When evaluating the motion, “the evidence must be ‘viewed most favorably
to the party against whom the verdict is sought to be directed.'” Id. at 155, 501 N.W.2d at 849
(citation omitted). This court applies
the same standard on appeal, tempered by our deference “‘to the trial court's
better ability to assess the evidence.'”
Id. (citation omitted).
Accordingly, this court will not reverse a trial court determination to
grant “a motion for a directed verdict unless the record reveals that the trial
court was ‘clearly wrong.'” Id.
(citation omitted).
DISCUSSION
As a general matter, “the existence of
negligence is a question of fact which is to be decided by the jury.” Ceplina v. South Milwaukee Sch. Bd.,
73 Wis.2d 338, 342, 243 N.W.2d 183, 185 (1976) (footnote omitted). Further, it is for the jury to determine the
credibility of witnesses and draw the ultimate conclusions as to the
facts. American Family Mut. Ins.
Co. v. Dobrzynski, 88 Wis.2d 617, 630, 277 N.W.2d 749, 755 (1979). “[W]hen conflicting evidence is pointed out
to the jury, the weight to be given to the conflict and the determination of
which version should be believed are matters for the finder of fact to
resolve.” Rabata v. Dohner,
45 Wis.2d 111, 117, 172 N.W.2d 409, 411 (1969).
The trial court focused
largely on Gregory's testimony when ruling on Milwaukee Transport's motion for
a directed verdict. Characterizing
Gregory's testimony at trial as a “shallow performance,” the trial court
asserted that the jury would not accept her version of the accident:
Accompanied by the universal statement
that a right turn was made and that that same right turn would be made
literally dozens of times today, that on the day in question, the testimony we
have is that the bus driver says the floor was damp, the testimony of one of
the witnesses who presumably has no connection with this case was that it was
dry. That is indeed a slender re[e]d
upon which to hang a finding, and I don't think this jury will. I frankly have never heard a witness take
the stand and made statements like, I don't remember a deposition that was
taken, I don't remember that I ever rode a bus before.
The
trial court then concluded that “any jury that would make a finding of
negligence on the part of the bus driver to exclusion or to greater than 50
percent ... or more on that bus driver, would be an unreasonable jury and this
court would not sustain it.”
This decision discloses
that the trial court passed on the credibility of the witnesses and weighed the
evidence in ruling on Milwaukee Transport's motion for a directed verdict. Because the trial court invaded the province
of the jury by judging witness credibility and resolving conflicts in the
evidence, the trial court's decision was “clearly wrong” within the meaning of Leen. Accordingly, the judgment granting Milwaukee
Transport's motion for a directed verdict must be reversed and the matter
remanded for a new trial.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.