Bailey v. Bach

• Decision Date: 08 November 1950
• Citation: 257 Wis. 604,44 N.W.2d 631
• Parties: BAILEY et al. v. BACH et al.
• Court: Wisconsin Supreme Court

Page 631

44 N.W.2d 631

257 Wis. 604

BAILEY et al. v. BACH et al.

Supreme Court of Wisconsin.

Nov. 8, 1950.

Schubring, Ryan, Petersen & Sutherland and Ralph E. Axley, all of Madison, for appellants.

Roberts, Roe, Boardman, Shur & Bjork, Madison, for respondents.

BROWN, Justice.

Regarding the merits of the jury's findings we think it sufficient to say that a study of the record convinces us that the questions cannot be decided as a matter of law and therefore the answers must remain as the jury gave them. While Mrs. Bailey testified that her speed was not over 35 miles per hour, which was the posted limit at the scene of the accident, and her counsel argued that his computations of estimated time spent in travelling estimated distances prove her speed to be within the limit, two disinterested witnesses placed it as not less than 45 miles per hour, which would be negligence as a matter of law. We cannot say that the computation, made on a basis of so many variables, makes the witnesses' testimony incredible, while the distance travelled by the automobile after it went off the highway, and the force with which it hit at the end of its run, tend to corroborate them. Moreover, the learned trial court instrucged the jury that it must find the speed was a negligent one if over 35 miles per hour but that 'It is for you to determine whether the speed was over 35 miles per hour and, if under, whether the speed at which she was driving was negligence under the conditions and circumstances then present and under the rule of law as given you by these instructions.'

The instruction correctly states the law and was not objected to by counsel, either at the trial or here, as inapplicable to the facts. He may have convinced the jurors that his client's speed was less than 35 miles per hour without persuading them that it was not a negligent speed under the circumstances. No question was submitted concerning speed in miles per hour--we do not say that there should have been--but without that it is unresolved whether hers was determined to be a negligent speed as a matter of law or as a matter of fact. There was evidence to support the finding on either alternative and it must stand.

Turning to Mrs. Bailey's management and control, she submits that her loss of control was produced by Bach's sudden entry into her path which created an emergency and was not due to any negligence of her own. There was her testimony that she saw Bach when he 'crawled' into the highway and his that she was then some 800 feet away. She did nothing except blow the horn and accelerate slightly and attempt to go by on his right. There was contrary testimony, of course, on the distance which separated them when he entered the highway but the jury was not required to accept the sudden emergency theory. We consider there is evidence sustaining this finding and the learned trial court correctly denied the motion to change it. The same thing applies to plaintiff's criticism of the finding that Bach was not negligent as to lookout. He testified that he saw Mrs. Bailey just before he entered the highway and she was then 800 to 900 feet away. He did not see her afterwards but he was turning north which placed her behind him. Under the circumstances of this case it was for the jury to say whether the lookout was sufficient to meet the standard of ordinary care.

The division of the total negligence is peculiarly within the jury's province and we can find nothing in the record to justify our interference with it. Plaintiff objects that a requested instruction was denied and the one given in its place was inadequate as not giving sufficient emphasis to the duty a driver entering a public highway from a private drive has to yield the right-of-way to autos already on the highway. She submits that if the requested instruction had been given the jury would have better understood the parties' respective rights and duties and consequently would have increased the share of causal negligence which it allotted to defendant. We think that the jury was properly instructed and that it understood defendant's duty. It found him negligent in this respect. The proportion of negligence it assigned to him in comparison with that of plaintiff is more likely attributable to plaintiff's description of her own conduct than to the jury's misunderstanding of duties concerning the right-of-way.

Plaintiff submits, also, that the findings on right-of-way, Bach's lookout and plaintiff's speed are inconsistent, requiring a new trial. Bach saw her but miscalculated and drove into her lane of travel. We think the jury might properly find, as it did, that his lookout complied with ordinary care but that his encroachment on her traffic lane did not. We do not find inconsistency here nor between these factors and the finding that plaintiff's speed exceeded that required by ordinary care.

Plaintiff bases her final assignment of error on this extract from the record:

'The statement made by counsel and the ruling of the court was as follows:

'Mr. Axley: Counsel said to the Jury in his argument that in order for there to be a recovery, the plaintiff's speed must be less than 35 miles an hour. That is not the law in this state and I object to the statement and request that the Jury be instructed to take their instructions as to the law from the Court.

'Mr. Roberts: Your Honor, I hadn't...