Brain v. Mann

• Decision Date: 21 February 1986
• Docket Number: No. 85-0280,85-0280
• Citation: 129 Wis.2d 447,385 N.W.2d 227
• Parties: James BRAIN and Vicky Brain, Plaintiffs-Appellants and Cross-Respondents, v. Cindy L. MANN, Defendant, Dwight M. Schmitz, and Sentry Insurance Company, Defendants-Respondents and Cross-Appellants. *
• Court: Wisconsin Court of Appeals

Page 227

385 N.W.2d 227

129 Wis.2d 447

James BRAIN and Vicky Brain, Plaintiffs-Appellants and Cross-Respondents, v. Cindy L. MANN, Defendant Dwight M. Schmitz, and Sentry Insurance Company Defendants-Respondents and Cross-Appellants.^*

No. 85-0280.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 3, 1986.

Opinion Released Feb. 21, 1986.

Opinion Filed Feb. 21, 1986.

Review Denied.

Frisch, Dudek and Slattery, on brief for plaintiffs-appellants and cross-respondents; with Lynn R. Laufenberg, Milwaukee, of counsel.

Cook & Franke, S.C., on brief, for defendants-respondents and cross-appellants; Robert F. Johnson, Milwaukee, of counsel.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

WEDEMEYER, Judge.

Vicky and James Brain appeal from the judgment entered in this personal injury action and from the order denying their postverdict motions. They claim the trial court erred by excluding expert testimony on Vicky's lost future earning capacity and by refusing to instruct the jury on this issue. They also contend that the awards for Vicky's pain and suffering and for James's loss of consortium were inadequate, and that a new trial on damages is necessary in the interest of justice. Dwight Schmitz and his insurer, Sentry Insurance Company (Sentry), cross-appeal for a new trial on the question of liability. Sentry questions the sufficiency of the evidence buttressing the jury's apportionment of negligence and asserts trial court error in permitting the investigating police officer to give expert testimony on the appropriate reduced safe speed at the accident site. We affirm the judgment and order on all counts except the ruling on Vicky's lost future earning capacity. Because the trial court improperly struck the entirety of the proffered expert testimony on this subject, we reverse and remand for a new trial limited solely to the issue of damages for Vicky's lost future earning capacity.

Vicky was a passenger in Schmitz's automobile when it collided with a vehicle driven by Cindy Mann. Vicky suffered a compressed vertebrae and subsequently brought suit against both Schmitz and Mann. Prior to trial, Mann's insurer paid the policy limits, $25,000, and was dismissed from the case. At trial, the jury found Mann 98% causally negligent and Schmitz 2% causally negligent. The jury awarded $30,000 to Vicky for past and future pain, suffering and disability and granted damages of $1,000 to James for loss of consortium. The trial court answered the subdivisions of the damage question relating to past medical expenses ($1,672.75) and past wage loss ($7,002).

On appeal, the Brains assert that the jury awards were insufficient and that the trial court improperly precluded jury consideration of a potentially large item of damages ($138,000) for loss of future earning capacity. On cross-appeal, Sentry argues that Schmitz was totally free of negligence. Because a resolution of the negligence issue favorable to Sentry would preclude our consideration of the other claims of error, we turn to that question first.

APPORTIONMENT OF NEGLIGENCE

The apportionment of negligence is a matter left to the jury, and we will uphold the jury's finding if there is any credible evidence to support it. Maci v. State Farm Fire & Casualty Co., 105 Wis.2d 710, 718, 314 N.W.2d 914, 919 (Ct.App.1981). This is particularly true when, as here, the verdict has trial court approval. Fehring v. Republic Insurance Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984). Matters of weight and credibility are left to the jury's judgment, and where more than one reasonable inference can be drawn from the evidence, this court must accept the inference drawn by the jury. Poling v. Wisconsin Physicians Service, 120 Wis.2d 603, 608, 357 N.W.2d 293, 296 (Ct.App.1984).

Since both cars involved in the collision carried passengers, the jury heard several versions of the accident. It is uncontroverted that the collision occurred in an area undergoing construction, that the roadway was reduced to one lane of traffic in each direction, and that Mann's car crossed the center line into the path of Schmitz's oncoming vehicle. How long Mann's car was in Schmitz's lane is a matter of dispute, thus bringing into question the amount of care Schmitz exercised in keeping a proper lookout. When there are inconsistencies between witnesses' testimony, the credibility of the witnesses and the weight of their testimony are matters for the jury. State v. Daniels, 117 Wis.2d 9, 17, 343 N.W.2d 411, 415 (Ct.App.1983). It is well settled that an appellate court will only substitute its judgment for that of the fact finder when the evidence relied upon by the fact finder is inherently incredible. Gauthier v. State, 28 Wis.2d 412, 416, 137 N.W.2d 101, 104 (1965), cert. denied, 383 U.S. 916, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966). Incredible evidence is evidence which conflicts with nature or with fully established or conceded facts. Daniels, 117 Wis.2d at 17, 343 N.W.2d at 415-16. Because here the testimony of the various witnesses is only contradictory, not incredible, we decline to rule that the jury could not, as a matter of law, assess some negligence to Schmitz on the lookout issue.

Even if we assume arguendo that the jury did not apportion causal negligence to Schmitz for failure to keep a proper lookout, credible evidence exists that Schmitz was not driving at a reasonably safe speed under the circumstances. The speed limit in the area was thirty miles per hour, and Schmitz testified his car was doing twenty-five to thirty miles per hour. The investigating officer, however, testified that the appropriate safe speed was twenty miles per hour due to the construction. This estimate corresponded to the figure this same officer had entered on his accident report at the time. Sentry objected to this testimony on the grounds that the officer was not qualified to express an expert opinion on safe speed. See sec. 907.02, Stats.

The admission of expert testimony is a matter of trial court discretion, but an expert witness may only testify within areas in which he or she is qualified. Herman v. Milwaukee Children's Hospital, 121 Wis.2d 531, 551, 361 N.W.2d 297, 305-06 (Ct.App.1984). The qualification of an expert depends on experience, not on more formal attributes such as professional licensure. Karl v. Employers Insurance of Wausau, 78 Wis.2d 284, 297, 254 N.W.2d 255, 261 (1977). Here, the trial court properly analyzed the officer's qualifications in terms of police academy training and practical experience in accident investigations. The trial court also correctly distinguished this case, where an officer was being asked his opinion concerning safe speed in a construction zone, from those cases where police officers improperly testified on matters concerning accident reconstruction. See City of Milwaukee v. Bub, 18 Wis.2d 216, 224-25, 118 N.W.2d 123, 127-28 (1962) (police officer not qualified to testify as to point of impact in automobile accident case). Because the determination of appropriate safe speed is a matter which police officers regularly consider in the ordinary course of their duties, and because the testifying officer had the requisite training and experience to render an expert opinion Because credible evidence was presented on the issues of lookout and safe speed, and because we must view the evidence in the light most favorable to the verdict, Krueger v. Mitchell, 112 Wis.2d 88, 105, 332 N.W.2d 733, 741 (1983), we conclude that the apportionment of 2% of the causal negligence to Schmitz was not error. We therefore decline to second-guess the jury by remanding this case for a new trial on liability.

concerning safe speed, the trial court did not err in admitting the officer's testimony.

ADEQUACY OF JURY AWARDS

Next we turn to the question of damages. The Brains first contend that a new trial on damages is necessary because the awards for loss of consortium and for pain and suffering were inadequate. In reviewing jury awards, this court may not substitute its judgment for that of the jury but, rather, determines whether the awards are within reasonable limits. Cords v. Anderson, 80 Wis.2d 525, 552-53, 259 N.W.2d 672, 685 (1977). If there is any credible evidence which under any reasonable view supports the jury finding as to the amount of damages, especially when the verdict has the approval of the trial court, this court will not disturb the finding unless the award is so unreasonably low that it shocks the judicial conscience. Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction Corp., 96 Wis.2d 314, 340, 291 N.W.2d 825, 838 (1980) (citations omitted). Where the trial court approves the damages verdict and provides an analysis of the evidence supporting the verdict, we will set aside the verdict only if there is an evident misuse of discretion. Badger Bearing, Inc. v. Drives & Bearings, Inc., 111 Wis.2d 659, 670, 331 N.W.2d 847, 854 (Ct.App.1983). Because the trial court here approved the awards without stating its reasons for doing so, we must examine the evidence ab initio to determine whether there is any credible evidence to support the jury's verdict. Id.

In the accident, Vicky sustained a compression fracture of the first lumbar vertebrae. She was hospitalized for five days. No surgery was performed then or later; instead, she wore a thoraco-lumbar corset for approximately five months after the collision. Vicky's treating physician testified that the fracture had healed, but that Vicky would be permanently limited in her physical movement in order to avoid back pain and spasms. He identified certain restricted activities such as heavy lifting and repetitive bending and assessed her permanent partial disability as 15% of her entire body. The record, however, contains conflicting testimony as to the frequency and severity of Vicky's back pain and the limitations on her physical activities. As for evidence concerning James's loss of...