Bruno v. Biesecker

• Decision Date: 29 October 1968
• Parties: Florence C. BRUNO et al., Respondents, v. Lee L. BIESECKER et al., Appellants.
• Court: Wisconsin Supreme Court

Page 135

162 N.W.2d 135

40 Wis.2d 305

Florence C. BRUNO et al., Respondents, v. Lee L. BIESECKER et al., Appellants.

Supreme Court of Wisconsin.

Oct. 29, 1968.

Heide, Sheldon, Hartley & Thom, S. Michael Wilk, Kenosha, for appellants.

Baker, Juliani, Stanhope, Joling & Greco, Robert J. Joling, Kenosha, for respondents.

ROBERT W. HANSEN, Justice.

The jury found the defendant Lee L. Biesecker causally negligent in the operation of his tow truck. The jury also found the plaintiff Mrs. Florence C. Bruno causally negligent in the operation of her automobile. No challenge is made and no issue raised as to either of these findings by either of the parties involved in this appeal. That both drivers were causally negligent to some degree is conceded.

This appeal asks only a single question: As a matter of law was the negligence of the plaintiff equal to or greater than that of the defendant? The trial court answered this same question in the negative on motions after verdict and granted plaintiff judgment on the verdict of the jury.

Appellant's counsel earnestly contends that this case is ruled by Guptill v. Roemer, ¹ a left-turn case in which this court stated:

'We might observe that the case at bar is one of three appeals decided by us on this assignment involving motor vehicle accident cases in which a driver attempted, as did plaintiff Guptill, to make a left turn in the path of an oncoming vehicle under circumstances where a collision was certain to ensue if the latter vehicle continued in its same lane of travel and at its same speed. It is difficult for us to understand how a conscientious jury under such circumstances could attribute the smaller percentage of negligence to the driver making the left turn whose act precipitated the situation resulting in the collision.' ²

As a comment by the court on the exact fact situation or even three fact situations then before it, the statement is not to be faulted. However, it is not to be read as laying down the inflexible rule that under any and all circumstances, the driver making the left turn is responsible for the majority of the blame for the ensuing collision. Each tub stands on its own bottom. The facts in each case must be carefully reviewed and evaluated before the reasonableness of a jury finding as to comparative negligence of the colliding drivers can be determined. It should be noted that in the Guptill case the court for reasons including 'grossly inadequate' damages limited itself to ordering a new trial in the interests of justice. It is at least suggested that '* * * it cannot be held as a matter of law that one of the tort feasors was guilty of at least 50 per cent of the aggregate negligence.' ³

Respondent's counsel argues that the applicable holding of this court is to be found in Grana v. Summerford ⁴ where this court stated:

'Although making a left turn in violation of sec. 346.34(1), Stats., 40 W.S.A., p. 423, (prohibiting a left turn into a private driveway unless and until such turn can be made with reasonable safety) is negligence as a matter of law because the section is a safety statute, the brech of the statute is not established from the fact a collision occurred, nor does a breach of the statute establish as a matter of law the degree of contribution of the negligence to the accident. Sec. 346.34(1) does not impose absolute liability but establishes a standard of care that a left turn into a private driveway cannot be made unless and until such turn can be made with reasonable safety. What is reasonable safety depends upon the facts in the particular case.' ⁵

In the Grana case, the trial court denied a motion for a directed verdict contending the left turning driver's negligence was equal to or greater than that of the second driver involved as a matter of law. This court upheld the trial judge's refusal to direct a verdict, stating: 'A question of fact for the jury on the apportionment of the negligence was presented.' ⁶

While there are differences in the testimony and fact situations involved which we need not detail here, the Grana Case is like the case before us in that there was contradictory testimony allowing several inferences to be drawn therefrom. Speed of the non-turning driver was the key point in Grana. In refusing to find the speed of the approaching vehicle immaterial, this court also rejected the theory that because the turning driver could have seen the approaching vehicle if he had looked before making the turn he is almost solely responsible for causing the collision. This court then clearly stated that 'Assuming negligence on the part of Grana (the turning driver), it does not follow as a matter of law that his negligence was equal to or greater than the defendant's negligence of excess speed.' ⁷

In the instant case, there are contradictions in the testimony presented but these are for the jury to resolve. The jury was entitled to accept although certainly not required to, testimony of the plaintiff that when the driver in the southerly westbound lane stopped and motioned to her to make the turn in front of him she looked to both sides but 'didn't see any cars that would be coming--that would hit me,' along with the testimony of the thirteen year old boy that when he saw the defendant honking the horn, defendant's truck was in the southerly westbound lane with cars in front of him and behind him. Defendant denies changing lanes, but this is for the jury to determine. Believing the boy and not the defendant, the...