Borowske v. Integrity Mut. Ins. Co.

• Decision Date: 30 April 1963
• Citation: 121 N.W.2d 287,20 Wis.2d 93
• Parties: Frank BOROWSKE, Respondent, v. INTEGRITY MUTUAL INSURANCE COMPANY et al., Appellants.
• Court: Wisconsin Supreme Court

Page 287

121 N.W.2d 287

20 Wis.2d 93

Frank BOROWSKE, Respondent, v. INTEGRITY MUTUAL INSURANCE COMPANY et al., Appellants.

Supreme Court of Wisconsin.

April 30, 1963.

Herrick & Sigl, Eau Claire, for appellants.

Frank E. Huettner, Cadott, for respondent.

DIETERICH, Justice.

The accident occurred at approximately 9:30 a. m., August 31, 1960, at the intersection of County Trunk MM and an unnamed town road, one mile east and one mile south of the village of Cadott, Wisconsin.

The testimony which bears on the relevant issues on this appeal is in substance as follows:

The witnesses agreed that the intersection was formed by two roads at right angles to each other, County Trunk MM running east and west, and the town road traveling north and south. Both roads were level and straight at and near this intersection. The town road was surfaced with gravel and somewhat rough to the south of the intersection except for those times when it had just been graded. County Trunk MM was surfaced with blacktop to the west of the intersection and with gravel to the east of the intersection. The blacktop portion was covered with sand and gravel from a point about 75 feet west of the intersection to the intersection itself. Since the time of the accident MM has been resurfaced so that it is now blacktop east as well as west, of the intersection. The intersection was uncontrolled and no signs were present of any kind except one which faced west on MM and stated that the road was under construction and to drive carefully. All witnesses to the scene agreed further that a growth of willows and tag elders growing in the southwest corner of the intersection completely obscured vision except for a small hole or channel through this growth running diagonally from about 300 feet to the west on MM to 300 feet to the south on the town road. The growth was somewhere between 10 and 15 feet high. There was some disagreement as to whether this growth extended to the shoulders of the roads or whether it stopped at the fence lines at some distance from the shoulders.

Borowske testified that he lived one mile south and one-quarter mile west of the intersection and that he traveled the town road three or four times each day. On the day the accident occurred he left his home at about 9 a. m., driving his 1956 Chevrolet, and approached the intersection from the south at a speed of about 25 miles per hour. As he approached MM he slowed to eight to 10 miles per hour as the road was very rough. His vision was obscured to the west because of the presence of the willows and tag elders growing to the southwest of the intersection. He did not see Hurth until he entered the intersection at which time Hurth was approaching some 250 feet away. Borowske attempted to accelerate across the intersection ahead of Hurth, but was struck in the left rear wheel of his car and spun around. The point of impact was at or near the center of the intersection. On cross examination Borowske stated that he had not seen the Hurth vehicle until he had seen gravel fly and he, Borowske, was at or near the centerline of MM.

After helping the traffic patrolman take measurements, Borowske went to the clinic in Cadott where he saw Dr. Haines. Borowske stated that he had injuries to both feet, the right kneecap, groin, chest, forearm, finger, neck and head. He had been knocked unconscious for a minute or two from the collision. Dr. Haines bandaged his feet and knee and gave him crutches which he used for a month or more. He still has pain in his feet and right knee and wears special arch supports in his shoes. He has continued to see Dr. Haines for treatment of these injuries.

Hurth testified that he lived one and one eighth mile east of the intersection in question and drives through that intersection many times. He said that he was returning home in his 1953 Ford from Cadott with his three year old son on MM at a speed of about 40 miles per hour on the day of the accident. Some 250-275 feet before he reached the intersection he saw the Borowske car approaching from the south at a distance of approximately 300 feet, through an opening in the growth southwest of the intersection. He assumed that he had the right of way and that the other car would come to a stop and allow him to pass. He approached the intersection with his foot off the accelerator as there was sand and gravel ahead. He again saw the Borowske vehicle when it was about a car length and one half from the intersection and he was 50 to 75 feet away from the intersection. Hurth applied his brakes, grabbed his child, and turned the wheel to the right. His car skidded to the point where he hit Borowske. In Hurth's opinion Borowske was traveling faster than eight to 10 miles per hour.

James Revoir, the traffic officer who investigated the accident found debris in the center of the intersection and skid marks from the west about 70 feet long. The weather was clear and the road was dry.

Dr. B. J. Haines testified that Borowske came to him for treatment on the day of the accident. Borowske had suffered a contusion and hemotoma on the left foot, contusion on the right foot, contusion on his chest, abrasion of the right index finger, injury to the medial cartilage of the right knee and a mild cerebral concussion. Dr. Haines taped both arches and put an elastic bandage around Borowske's right knee. Dr. Haines gave Borowske crutches and sent him home. The next day x-rays were taken, no further injury was revealed by them. It was Dr. Haines's opinion that Borowske has now fully recovered from all injuries received in the accident of August 31, 1960, except those to his left foot and right knee. The doctor stated that Borowske had traumatic bursitis of the right knee caused by a tear to the cartilage on the inner surface of the knee joint. Borowske was still under treatment and received shots which lessened the inflammation and pain in his knee and pain in his foot. Dr. Haines could not substantiate certain injuries to Borowske's groin as they were not brought to his attention until some months after the accident occurred.

Dr. Thomas E. Kilkenny, an orthopedic surgeon, testified for the defense. He gave Borowske a thorough examination July 2, 1962, and found him normal with no residuals of any injuries he may have sustained in the accident of August 31, 1960. It was his opinion that no damage had been done to the cartilage of Borowske's knee, but that if a theoretical person did sustain an injury of that type, such injury would be permanent.

At the conclusion of the testimony and final argument the trial court gave an instruction relative to the emergency rule. The defendants contend that this was error as Borowske was negligent as a matter of law with respect to lookout. Secondly, the defendants contend that undue emphasis was put on the emergency doctrine because counsel for plaintiff, Borowske, mentioned such doctrine in his final argument. No record of the final argument in question is before this court. The only evidence to such argument is an affidavit by counsel for defendants stating that such argument was made. On oral argument before this court it appears that such affidavit was not approved by the trial judge as part of the bill of exceptions and therefore will not be considered on this appeal.

Whether such argument was made or not is not important however since the jury found Borowske 25 percent causally negligent with respect to the accident and in such situation the emergency doctrine does not apply.

'To be entitled to the benefit of the emergency rule, the party so claiming carries the burden of proving, (1) that an emergency developed so suddenly and unexpectedly that there was no time for considered action, and (2) that no act or failure to act on his part contributed to the emergency, but the evidence in the instant case, as to when the driver of the colliding truck first saw the automobile coming out from a tavern driveway, and as to when he became concerned and active about a possible collision, failed in every respect to meet such requirements so as to entitle him to the benefit of the emergency rule.' Baird v. Cornelius (1961), 12 Wis.2d 284, 107 N.W.2d 278. Headnote No. 4.

The instruction given by the trial court was clear in this regard, to wit:

'If you are satisfied that either driver without fault became confronted with an unforeseen emergency which was not brought on by a failure on his own part to exercise ordinary care and which unforeseen emergency would overpower the judgment of an ordinarily careful person so that momentarily he was not capable of intelligent action, he may not have been negligent or have failed to exercise ordinary care, and the law did not require him if and when confronted with such an emergency not produced by himself to take the best means to avoid a collision.

'It is but a natural impulse for one so situated to do that which upon the moment he may believe will avert or minimize the consequences of certain collision. The law does not require him to act in a manner which subsequent contemplation and consideration may indicate to have been the best course for him to pursue. He is permitted to do that which seemed best for him at the time and under the circumstances. However, you will bear in mind that this rule does not apply to any person who is negligent in getting into the situation of impending danger. One is not entitled to the benefit of this rule unless he is without fault in creating the emergency.'

Under the facts in this case the instruction on the emergency doctrine should not have been given. However, we cannot hold that the giving of the instruction was prejudicial for it applied with equal force to either of the parties in the action.

Damages.

Borowske did not introduce any evidence as to future pain, suffering or disability through his expert witness, Dr. Haines. Dr....