Atkinson v. Huber

• Decision Date: 08 February 1955
• Citation: 268 Wis. 615,68 N.W.2d 447
• Parties: Isabel M. ATKINSON and Jesse R. Atkinson, Plaintiffs-Respondents, v. George HUBER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 447

68 N.W.2d 447

268 Wis. 615

Isabel M. ATKINSON and Jesse R. Atkinson, Plaintiffs-Respondents, v. George HUBER, Defendant-Appellant.

Supreme Court of Wisconsin.

Feb. 8, 1955.

An action was commenced on September 22, 1953 by Isabel M. Atkinson and Jesse R. Atkinson, her husband, to recover for injuries sustained by Isabel M. Atkinson as a result of a collision which occurred on May 8, 1952 at about 11:30 A.M. between an automobile driven by her and one driven by the defendant, George Huber. It was what is quite commonly referred to as a 'head-on collision'. Trial was had to a jury which by a special verdict found defendant guilty of causal negligence with respect to the position of his automobile on the highway, speed, lookout, and control and management. The identical questions were put to the jury with respect to the conduct of Mrs. Atkinson; each was answered in the negative. The jury awarded Mrs. Atkinson $55,000 for personal injuries and $7,200 for loss of earnings. They awarded her husband $8,738.25 for medical expenses and $25,000 for the loss of his wife's services, society and assistance. After crediting against the amounts awarded the sums paid by the defendant's insurer, judgment was entered on April 28, 1954 in favor of plaintiff, Isabel M. Atkinson for $52,640.37 and in favor of her husband, the plaintiff, Jesse R. Atkinson for $28,553.52. Defendant appeals.

Darrell MacIntyre, R. R. Roggensack, Madison, of counsel, for appellant.

Walker & Taylor, Portage, for respondents.

GEHL, Justice.

Defendant contends (1) that the jury was given an erroneous instruction; (2) that the court erred in refusing to strike certain testimony from the record and (3) that the award of $25,000 to the husband for loss of services, society and assistance, is so excessive as to disclose perversity which requires a new trial.

Defendant was driving south and Mrs. Atkinson north on highway 22 in Columbia County. The cars collided at or near the south extremity of a northwest-southeast curve in the highway. As a result of the injuries sustained Mrs. Atkinson was unable to remember the accident. A passenger in her automobile was killed in the accident. Defendant testified that as he approached the south extremity of the curve he was going at the rate of between 45 and 50 miles per hour. He first saw the Atkinson car approaching from the south when they were about 300 feet apart. She was then on her right side of the road. Although he was not exceedingly precise or definite in his description of the collision he did testify that she drove to his side of the road, that it occurred on the west half of the roadway and that he was on his side of the road at all times.

The court instructed the jury as follows:

'If you find that Mrs. Atkinson suffered a complete loss of memory as a consequence of the injuries sustained in the accident and on account thereof is unable to testify as to the facts and circumstances surrounding the accident, then she is presumed in connection with the particular respects where there is no actual evidence as to what her acts or omissions were, that she was careful and used due care and circumspection and that she was not negligent in those particular respects, for the law presumes that a person will use ordinary care to protect herself from danger and that she will not knowingly and consciously place herself in imminent danger because of the natural instinct of self-preservation. This presumption is rebuttable and disappears if there is credible evidence in the case reasonably tending to rebut and overcome it.'

Defendant contends that plaintiffs were not entitled to the instruction because there was 'actual evidence as to what her acts or omissions were' and that by so instructing the court had left it to the jury to decide whether the presumption had been rebutted and where it was applicable.

This court is committed to the doctrine that where in a negligence case evidence is introduced which would support a jury finding contrary to the presumption that a deceased person or one who has suffered amnesia exercised due care for his own safety the presumption is eliminated and drops out of the case entirely and no instruction upon that subject should be given to the jury. Fiedler v. Kapsa, 255 Wis. 559, 39 N.W.2d 682; Kreft v. Charles, 268 Wis. 44, 66 N.W.2d 618. Counsel for plaintiffs has cited a number of cases which she contends should be construed as stating or supporting a contrary rule. We do not agree with the contention. In Vogel v. Vetting, 265 Wis. 19, 60 N.W.2d 399 the instruction was given only with respect to the question which inquired as to the lookout maintained by the drivers. We held that since there was no evidence of failure in that respect, no evidence contrary to the presumption, there was no error in giving the instruction. In Bassil v. Fay, 267 Wis. 265, 64 N.W.2d 826, no attack was made upon any instruction given. Likewise, in Walter v. Shemon, 267 Wis. 424, 66 N.W.2d 160 there was no attack made upon any instruction; we held only that there was no evidence to overcome the presumption. In Davis v. Fay, 265 Wis. 426, 61 N.W.2d 885 we were concerned with the contention that the presumption exists only in case of death; we held that it may exist in the case of amnesia also. None of these cases can be read as stating or suggesting a contrary rule.

The testimony of the defendant to which we have referred is evidence contrary to the presumption that Mrs. Atkinson exercised care for her own safety with respect to the position which she allowed or caused her car to occupy upon the highway. If that had been the only inquiry as to her conduct in the verdict, as we believe it should have been, to have given the instruction, even limited as it was, would have been prejudicial error.

It remains to be seen whether the error was cured by reason of the fact that the jury were directed to give effect to the instruction only when considering the questions of the verdict which inquired as to specifications of negligence as to which...