COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 21, 1995 |
NOTICE |
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
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Nos. 95-0090
95-0474
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
No. 95-0090
MICHAEL W. HILGER,
and JUDY HILGER,
Plaintiffs,
v.
WISCONSIN CENTRAL,
LTD.,
a Foreign Corporation,
Defendant-Appellant,
COUNTY OF DOUGLAS,
a Municipal
Corporation,
Defendant-Respondent,
WISCONSIN COUNTY
MUTUAL
INSURANCE CORPORATION,
a Domestic
Corporation,
TOWN OF PARKLAND,
WISCONSIN,
a Municipal
Corporation, and
ST. PAUL FIRE &
MARINE
INSURANCE COMPANY, a Foreign
Corporation,
Defendants.
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No. 95-0474
MICHAEL W. HILGER,
and JUDY HILGER,
Plaintiffs-Appellants,
v.
WISCONSIN CENTRAL, LTD.,
a Foreign Corporation,
Defendant-Respondent,
COUNTY OF DOUGLAS,
a Municipal Corporation,
WISCONSIN COUNTY MUTUAL
INSURANCE CORPORATION,
a Domestic Corporation,
TOWN OF PARKLAND, WISCONSIN,
a Municipal Corporation, and
ST. PAUL FIRE & MARINE
INSURANCE COMPANY, a Foreign
Corporation,
Defendants.
APPEALS from judgments
of the circuit court for Douglas County:
JOSEPH A. MC DONALD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Michael and Judy Hilger, the parents of William
Hilger, appeal a judgment dismissing their wrongful death action against
Wisconsin Central, Ltd.[1] The trial court dismissed the action based
on the jury's finding that William Hilger was sixty-five percent responsible
for the accident. The Hilgers argue
that the trial court erred when it did not allow them to call a rebuttal
witness and when it granted the railroad's motion in limine regarding
the adequacy of warning devices. They
also argue that the court should have informed the jury of the effect of its
verdict.[2] We reject these arguments and affirm the
judgment.
William Hilger was
killed in a car/train accident that occurred shortly before 8:00 a.m. An issue developed at trial regarding the
time Hilger was supposed to report to work that morning. The railroad contended that Hilger's
starting time was 8:00 a.m. and the accident occurred at approximately a
thirty-minute drive from his worksite, implying that his rush to get to work
contributed to the accident. The
Hilgers attempted to call a rebuttal witness, Pete Nelson, who would have
testified that William told him the night before the accident that he did not
have to get to work until 8:30 or 9:00 the next day.[3] The trial court disallowed Nelson's
testimony because Nelson was not disclosed as a witness, and because his
proffered testimony was hearsay and cumulative.
The trial court properly
exercised its discretion when it disallowed Nelson's testimony. Whether testimony should be admitted is a
question for the trial court's discretion and its decision will be upheld if
the trial court has examined the relevant facts, applied a proper standard of
law, and used a reasonable process to reach a conclusion that a rational judge
could reach. State v. Peters,
192 Wis.2d 674, 685, 534 N.W.2d 867, 871 (Ct. App. 1993). Nelson was not disclosed as a witness and
was not subject to discovery. The trial
court noted that Nelson had a criminal record that might affect his credibility. He was called primarily to rebut the
testimony of another rebuttal witness, not a defense witness. His testimony would have been hearsay except
to the extent it told of William Hilger's state of mind on the night prior to
the accident. See Doern v.
Crawford, 36 Wis.2d 470, 478, 153 N.W.2d 581, 585 (1967). Hilger's state of mind at that time has
little probative value. Because the
court allowed similar testimony from another witness, Nelson's testimony would
have been cumulative. We conclude that
the trial court reasonably exercised its discretion when it refused to allow a
surprise witness to present cumulative, marginally relevant testimony.
Nelson would also have
testified that he did not hear the train blow its whistle before the accident. Several other witnesses had contradicted the
railroad employees' testimony that they blew the whistle. The trial court appropriately disallowed
Nelson's testimony because Nelson was not disclosed as a witness, the issue of
whether the train whistle sounded was known before the trial began, and
Nelson's testimony would not be properly characterized as rebuttal and would be
cumulative.
Before trial, the court
granted the railroad's motion in limine regarding the adequacy of
warning devices. Before the accident,
the commissioner of transportation had reviewed the warning devices and
determined that they were adequate to protect public safety. The railroad fully complied with the
commissioner's April 3, 1991 order regarding the warning devices required at
that intersection. Therefore, as a
matter of law, the railroad was immunized from any challenge to the adequacy of
the warning devices at that crossing.
When the commission directs a crossing to be guarded in a particular
manner and the railroad has done as directed, it is not required to go further
to satisfy a jury's idea of adequate protection. Schulz v. Chicago M., St. P. & P. Ry. Co., 260
Wis. 541, 544-45, 51 N.W.2d 542, 544-45 (1952). When the commissioner of transportation makes a determination
regarding the adequacy of protective devices at a crossing, that office obtains
exclusive jurisdiction over the crossing.
See Verrette v. Chicago Northwestern Ry. Co., 40
Wis.2d 20, 28, 161 N.W.2d 264, 268 (1968); § 195.28(1), Stats.
The trial court properly
refused to instruct the jury on the effect of its verdict. See
Delvaux v. Langenberg, 130 Wis.2d 464, 480-81, 387 N.W.2d
751, 758 (1986). This court has no
authority to ignore supreme court precedent.
See State v. Lossman, 118 Wis.2d 526, 533, 348
N.W.2d 159, 163 (1984).
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] In appeal no. 95-0090, Wisconsin Central also appeals a summary judgment dismissing Douglas County from this action. We conclude that the issues between Wisconsin Central and Douglas County were rendered moot by the jury's finding that William Hilger was sixty-five percent responsible for the accident.
[2] Because we uphold the verdict as to liability, we need not address the issues relating to damages.
[3] The Hilgers also argue that the court disallowed rebuttal testimony from Rodney Anderson regarding the time Hilger was to report for work. The trial court overruled the objection to Anderson's testimony and the transcript does not support the argument that the trial court limited Anderson's testimony in that regard.