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COURT OF APPEALS DECISION DATED AND RELEASED October 15, 1996 |
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
official version will appear in the bound volume of the Official Reports. |
No. 95-2844
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JEFFREY L. WOODSON,
Plaintiff-Respondent-Cross
Appellant,
AIR WISCONSIN, INC.,
a Wisconsin
corporation,
Plaintiff,
v.
MARIE E. KREUTZER,
Defendant-Third Party Plaintiff-Appellant-
Cross Respondent,
MILWAUKEE MUTUAL
INSURANCE CO.,
Defendant,
v.
WISCONSIN COUNTY
MUTUAL
INSURANCE CORPORATION,
Third Party Defendant-Respondent.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Dunn County: ERIC J. WAHL, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. This personal injury
action arises out of a traffic accident.
Jeffrey Woodson and Marie Kreutzer were traveling in opposite directions
and collided in Woodson's lane of travel when Kruetzer executed a turn. The jury determined that Woodson was 51%
negligent and the trial court entered a judgment of dismissal. Both parties appeal.
Marie Kreutzer appeals a
summary judgment dismissing her counterclaim against Woodson and her claim
against Dunn County for negligent highway design. She argues that the trial court erroneously concluded that the
statute of limitations bars her claim against Woodson and municipal immunity
bars her claim against Dunn County. In
her appellate brief, however, she concedes that if the judgment of dismissal is
affirmed, her issues on appeal are "moot."
Woodson cross-appeals,
contending that (1) the jury's findings were contrary to law and the weight of
the evidence, (2) the trial court erroneously instructed the jury and (3) a new
trial in the interest of justice is required.
We conclude that the record supports the verdict, the court correctly
instructed the jury and the interests of justice do not require a new
trial. Therefore, we affirm the
judgment and do not reach Kreutzer's issues.
FACTS
The October 12, 1991,
accident occurred on a curving hilly section of a county highway on a clear
sunny day, at the intersection of County Y and Hilltop Road. Both drivers were familiar with that portion
of the highway. Because County Y
curves, traffic heading east from County Y onto Hilltop continues straight,
crossing the opposite northbound lane of travel on Highway Y. Double yellow lines separate the traffic
lanes. Although traffic entering Y from
Hilltop has stop signs, there are no stop signs on Y. However, a yellow "caution" sign with an arrow
indicating a sharp curve to the left and a twenty-mile-per-hour speed limit is
posted on the northbound side of County Y as traffic approaches the
intersection.
Because of a head injury
suffered in the collision, Woodson has no recollection of the accident
itself. Dunn County Deputy Sheriff
Michael Tietz investigated the collision.
On the day of the accident, Kruetzer was traveling in the southbound
lane of County Y and Woodson in the northbound lane as both approached the
Hilltop intersection. Tietz testified
that it was his opinion that a driver intending to proceed onto Hilltop should
signal. Kruetzer knew she had to yield
to traffic from the south on Y when proceeding onto Hilltop. The normal course of travel requires that
she cross Woodson's lane of travel.
Kreutzer told Tietz that
she did not signal her intention to proceed onto East Hilltop. She knew visibility was limited, and she did
not see Woodson's car until the front of her car was in his lane. Tietz testified that the impact occurred in
Woodson's lane. A civil engineer,
qualified as an expert, testified that Kruetzer was traveling nineteen miles
per hour and Woodson was traveling thirty-nine miles per hour at the time of
impact. He testified that the
intersection was dangerous and that Kruetzer would have only 2.5 seconds of
"sight distance" from the time she first saw the Woodson vehicle
until impact. Given the relative speeds
and positions of the vehicles, the expert testified that the collision could
not be avoided.
He also agreed that
speed was a contributing factor, and if Woodson would have been traveling
"within 20 or thereabouts" the accident would have been more easily
avoidable. He further testified that
Kruetzer's potential use of a directional signal would have made no difference
because given his speed, Woodson could not have avoided the collision within
the three-second time interval. He
further testified that Woodson could have seen Kruetzer approximately two
seconds before impact, 115 feet away from impact, while the Kreutzer vehicle
was still in the southbound lane of County Y.
On cross-examination, he testified:
Q. So at the point in time that
Mr. Woodson can first see that Mrs. Kreutzer's vehicle is going to
cross the center line rather than stay in her lane, his speed is irrelevant to
his ability to stop or avoid the accident.
Is that true?
A. I would say that's, because of
perceptionary reaction, that's probably true.
On redirect, the expert
witness testified:
Q. If the Woodson vehicle had been
going at a speed within the advisory, would that have given Marie Kreutzer
substantially greater opportunity to take evasive action?
A.
Yes.
CROSS-APPEAL
Because Kruetzer states
that her appellate issues are moot if we uphold the judgment of dismissal, we
first address Woodson's arguments.
Woodson argues that the jury's findings with respect to causal negligence
are contrary to law and the weight of evidence. He contends that the trial court erroneously submitted a question
with respect to Woodson's causal negligence.
When
the trial judge rules, either on motion for nonsuit, motion for a directed
verdict, or motion to set aside the verdict, that there is or is not
sufficient evidence upon a given question to take the case to the jury, the
trial court has such superior advantages for judging of the weight of the
testimony and its relevancy and effect that this court should not disturb the
decision merely because, on a doubtful balancing of probabilities, the mind
inclines slightly against the decision, but only when the mind is clearly
convinced that the conclusion of the trial judge is wrong.
Foseid
v. State Bank, 197 Wis.2d 772, 784, 541 N.W.2d 203, 208 (Ct. App.
1995) (citation omitted; emphasis in original.).
Woodson argues that the
trial erroneously submitted the issue of his negligence to the jury. We disagree. He relies on DeKeyser v. Milwaukee Auto. Ins. Co.,
236 Wis. 419, 425, 295 N.W. 755, 758 (1941):
"Maintaining a given rate of speed on one's proper lane of travel
on a highway is not negligent as excessive unless the circumstances render it
reasonably likely to result in loss of control or it is voluntarily maintained
when it is reasonably to be anticipated that the lane of travel may be
invaded."
Here, the record would
support a finding that Woodson was traveling thirty-nine miles per hour in an
area marked twenty miles per hour and that it was near a dangerous intersection
with which Woodson was familiar. Under
these circumstances, a jury question is raised whether under the circumstances
Woodson's speed was excessive and impaired his lookout and control. Therefore, the record supports the trial
court's decision to submit negligence to the jury.
Woodson argues, however,
that any negligence as to speed was not causal as a matter of law, citing Baker
v. Herman Mut. Ins. Co., 17 Wis.2d 597, 602, 117 N.W.2d 725, 728
(1962):
Even
if the truck was traveling in excess of forty miles per hour, we are satisfied
that its speed could not have been causal.
This court has never held that excessive or unlawful speed is causal
merely because it places the vehicle at a particular place at a particular
time. Excessive speed is causal,
however, when it prevents or retards the operator, after seeing danger, from
slowing down, stopping, or otherwise controlling the vehicle so as to avoid a
collision. (Emphasis added.)
Woodson argues that
"it must be shown that such speed interfered with the driver's ability to
control the vehicle so as to take action to avoid the collision at the time the
danger could first be recognized. Such
a showing was never attempted, much less made, in this case."[1]
Woodson's argument
relies on the reconstructionist's cross-examination testimony that at the point
when Woodson first recognized the danger, it mattered not whether he was going
thirty-nine miles per hour or nineteen miles per hour because he could do
nothing to avoid the collision. His
argument ignores, however, the reconstructionist's conflicting testimony on
direct and re-direct: that speed was a
contributing factor to the accident and if Woodson had been traveling nineteen
miles per hour, the accident would have been more easily avoidable. Because two competing inferences could have
been drawn from the reconstructionist's testimony, a jury question is
presented. It is a jury function to
resolve conflicting inferences in the testimony. Fehring v. Republic Ins. Co., 118 Wis.2d 299,
305-06, 347 N.W.2d 595, 598 (1984), overruled on other grounds by DeChant
v. Monarch Life Ins. Co., 200 Wis.2d 559, 576-77, 547 N.W.2d 592,
598-99 (1996).
Next, Woodson argues
that the trial court erroneously submitted the negligence question to the jury
because as a matter of law he was confronted by an emergency. We disagree. A driver faced with an emergency that is not of his making cannot
be found negligent for actions taken or not taken in response to that emergency. Leckwee v. Gibson, 90 Wis.2d
275, 288, 280 N.W.2d 186, 191 (1979).
To invoke the doctrine, "[t]the party seeking its benefits must be
free from the negligence which contributed to the creation of the emergency
...." Id.
Our conclusion on this issue
is compelled by our previous discussion.
The reconstructionist testified that Woodson was driving at a speed
beyond that posted as an advisory speed for the curve in question. He further testified that speed was a factor
and if Woodson had been traveling at nineteen miles per hour, the accident
would have been more easily avoided.
Although his cross-examination testimony arguably conflicted with this
opinion, the record is sufficient to present a jury question of the issue of
Woodson's negligence.
Next, Woodson argues
that the record does not support the jury's findings of 51% causal
negligence. We disagree.
The
standard of review of a jury verdict is that it will be sustained if there is
any credible evidence to support the verdict. ... The credibility of the witnesses and the weight afforded their
individual testimony is left to the province of the jury. Where more than one reasonable inference may
be drawn from the evidence adduced at trial, this court must accept the
inference that was drawn by the jury.
It is this court's duty to search for credible evidence to sustain the
jury's verdict.
Fehring, 118
Wis.2d at 305-06, 347 N.W.2d at 598 (citations omitted). The jury was entitled to infer from the
expert testimony that the accident would have been avoidable if Woodson would
have been traveling at the posted speed of twenty miles per hour around the
curve. The jury was entitled to weigh
the parties' negligence and determine that Woodson's excessive speed was
slightly more negligent than Kruetzer's failure to yield. The jurors could have inferred that
Woodson's excessive speed contributed to impaired lookout and control of his
vehicle. Our review of the record convinces
us that when the evidence is viewed in a manner most favorably to the verdict,
it does not reflect any significant disproportionality. Because the record supports the findings
made by the jury, we sustain its apportionment of negligence.
Next, Woodson argues
that the jury's damage award for past wage loss, pain, suffering and disability
were inadequate and contrary to the weight of the evidence. Based on the evidence of Woodson's severe
injuries, he argues that the evidence demonstrates perversity and a new trial
is required. See Westfall
v. Kottke, 110 Wis.2d 86, 328 N.W.2d 481 (1983); see also §
805.15(1), Stats. We are unpersuaded.
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. Sell v. Milwaukee Auto.
Ins. Co., 17 Wis.2d 510, 519-20, 117 N.W.2d 719, 724 (1962).
Because
the verdict resolves the negligence issue against Woodson, and is supported by
credible evidence, we do not reach the issue of damages and conclude a new
trial in the interest of justice is not required.
Next, Woodson argues
that the trial court erroneously instructed the jury. A trial court has broad discretion in instructing a jury based on
the facts and circumstances of a case. Fischer
v. Ganju, 168 Wis.2d 834, 849, 485 N.W.2d 10, 16 (1992). Each instruction must be viewed in the
context of the overall charge to the jury.
See Buel v. La Crosse Transit Co., 77 Wis.2d 480, 490-93,
253 N.W.2d 232, 237-38 (1977). "If
the instructions ... adequately cover the law applicable to the facts, [we]
will not find error in the refusal of special instructions even though the refused
instructions themselves would not be erroneous." State v. Higginbotham, 110 Wis.2d 393, 403-04, 329
N.W.2d 250, 255 (Ct. App. 1982). An
instruction will be deemed prejudicial if it is probable—not merely
possible—that the jury was misled. Nashban Barrel & Container Co. v.
G.G. Parsons Trucking Co., 49 Wis.2d 591, 606, 182 N.W.2d 448, 456
(1971).
The trial court refused
Woodson's request for the jury to be instructed concerning Kruetzer's duties to
yield the right of way and signal her turn.
See Wis J I—Civil
1195 and 1350.[2] With respect to the signal instruction, number
1350, the trial court explained that based upon its view of the evidence,
"any reasonable driver in her position had she seen Mr. Woodson in time
would have stopped, allowing him to pass but would not have signalled. I don't know that a signal would have helped
anybody."[3]
The record supports the
trial court's determination. It was
undisputed that Kreutzer was proceeding straight and not making any turn. Woodson does not suggest that he would have
seen a left turn signal when approaching from Kruetzer's right. Because the record fails to suggest that the
turn signal was a factor in the accident, the trial court reasonably rejected
it.
The trial court also
rejected number 1195 because it related to a left turn at the
intersection. The court concluded that
because Kreutzer was traveling in a straight line, and not making a left-hand
turn, it was not supported by the facts.
The court explained it would have confused the jury because:
Mrs.
Kruetzer said she specifically did not [signal left] because there was a
driveway that would have been a left turn and I think in point of fact that
neither of these people saw each other until it was too late to do
anything. And I think what we do to
jurors is we over load them with the fine points of law that are words that we
hear favor our position and I don't think we do them a great service by looking
for each and every instruction that has something that's good for us and
hopefully not so good for the other side.
The record is in accord
with the trial court's decision.
Although Kruetzer's lane of travel on County Y curved right, it is
undisputed that Kruetzer was proceeding in a straight line onto Hilltop. Consequently, the trial court's refusal of
instruction number 1195 is reasonably supported by the record.
CONCLUSION
We conclude that the
record supports the apportionment of 51% negligence against Woodson. Because credible evidence supports the
verdict, we do not reach the damages issue.
We also conclude that the record supports the trial court's
discretionary determinations with respect to jury instructions. A new trial in the interest of justice is
not required. We accept Kreutzer's
position that her appeal is rendered moot if we sustain the verdict as a waiver
of her issues on appeal. Therefore, because we sustain the jury's verdict, it
is unnecessary to address Kreutzer's appellate arguments.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1] Woodson cites other cases for essentially the same proposition. See also Dombeck v. Chicago, M., S.P. & P.R. Co., 24 Wis.2d 420, 433, 129 N.W.2d 185, 192 (1964) ("Speed is not causal merely because it arrived at the crossing the instant it did while if it had been going slower the car might have safely crossed ahead of it."); Clark v. McCarthy, 210 Wis. 631, 635, 246 N.W. 326, 327-28 (1933) ("When two cars proceeding upon a highway in opposite directions collide ... [i]t is difficult to see, however, how the mere speed of a vehicle can be a factor in such an accident, provided both cars maintain their proper place on the highway, and provided the highway itself is wide enough to permit them to pass each other without interference."); Reshan v. Harvey, 63 Wis.2d 524, 528-29, 217 N.W.2d 302, 304 (1974) ("Surely a driver on a divided highway is not bound to foresee that drivers on the opposite side of a median may lose control and invade the opposite lanes of traffic and thus is not bound to maintain such a rate of speed as necessary to avoid a collision should one do so.").
1195 RIGHT OF WAY: LEFT TURN
AT INTERSECTION
The Wisconsin statutes define
"right of way" as the privilege of the immediate use of the roadway
and, further provide, that the operator of a vehicle within an intersection
intending to turn to the left across the path of any vehicle approaching from
the opposite direction shall yield the right of way to such vehicle.
The word "approaching,"
as here employed, involves a concept of nearness in space and time. An automobile is approaching an intersection
when it is not so far distant therefrom that, considering the speed at which it
is traveling, it is reasonable to assume that a collision will occur if the
driver of the automobile intending to turn left undertakes to do so by changing
the course of the automobile from the right lane, across the center line, and
into the path of the oncoming automobile.
If you find that the oncoming
automobile was in fact approaching the intersection, it then became the duty of
the driver turning left to yield the right of way to such approaching
automobile.
1350 TURN OR DEVIATION: SIGNAL
REQUIRED
A safety statute provides that,
if traffic may be affected by (the turning of an automobile at an intersection)
(the turning of an automobile at a private road or driveway) (deviation of an
automobile from a direct course or by movement of the automobile to the right
or left upon the roadway), a person so (turning) (deviating) shall give an
appropriate signal by hand or directional signal of the intention to (turn)
(deviate).
It is further provided that such signal shall be given continuously not less than the last 100 feet traveled by the vehicle before turning.