Burke v. National Farmers Union Property & Cas. Co.
| Decision Date | 31 October 1967 |
| Citation | 36 Wis.2d 427,153 N.W.2d 545 |
| Parties | Colleen BURKE, a minor, by Carroll B. Callahan, her gdn. ad litem et al., Respondents, v. NATIONAL FARMERS UNION PROPERTY & CASUALTY CO., a foreign ins. corp. et al., Appellants. |
| Court | Wisconsin Supreme Court |
Petersen, Sutherland, Axley & Brynelson, Madison, for appellants.
Callahan, Arnold & Van Metre, Columbus, for respondents.
Three issues are raised on this appeal:
1. Is there credible evidence to support the jury's determination that Hamann was causally negligent?
2. Did the trial court err in refusing to give certain requested instructions?
3. Are the damages excessive?
Negligence of Hamann.
As to the first question of Hamann's causal negligence the standard of review invoked by this court is familiarly stated:
'The rule is well established that a verdict or a finding of a jury will not be set aside or disturbed, 'if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding'.
Mr. Hamann was driving 20 miles per 120, 123, 35 N.W.2d 187, 188. 'The familiar rule; often declared by this court, that where there is credible evidence to support a finding of a jury we may not disturb it, needs no citation of authorities.' Mossak v. Pfost (1950), 258 Wis. 73, 75, 44 N.W.2d 922, 923.' 1
The record clearly establishes that there is credible evidence to support the jury's finding of negligence on the part of Hamann.
This case is unique in that no witness actually saw the impact. Three potential witnesses who were involved in the accident (the plaintiff and Hamann's two passengers, school children he had just picked up at school) were not called to testify. The only testimony elicited during the trial which bore upon the negligence question was given by Hamann (who did not see the accident but said he heard only a 'thump' near his rear wheel), Police Officer Albert Walters (who arrived at the accident scene twenty minutes after the collision), and Roy Jones (a friend of Hamann's who admittedly did not see the accident).
Hamann's own testimony clearly establishes that he was negligent as to lookout. It is undisputed that he never saw the little girl until after the accident. The jury could have concluded that the reason why Hamann failed to see her was because he made no effort to look right or left or use his peripheral vision. Hamann, by his own admission, on looked straight ahead. Hamann knew that children were present. He was aware of the fact that all the schools in Columbus were located south of James street and that many children crossed at the intersection when returning home from school. Under these circumstances, this court has held that a motorist does not fulfill his lookout duty by looking only straight ahead. 2
Mr. Hamann was dricing 20 miles per hour at the time of the accident. He did not attempt to slow down as he approached the intersection. As the trial judge indicated, Hamann's speed was too fast under the circumstances. Sec. 346.57(2), Stats., provides that:
Sec. 346.57(3), Stats., provides that:
'The operator of every vehicle shall, consistent with the requirements of sub. (2), drive at an appropriate reduced speed when approaching and crossing an intersection * * * when passing school children, * * * and when special hazard exists * * * by reason of weather or highway conditions.'
As already stated, Hamann knew that many children cross James street while returning home from school. He knew that school was just getting out. He knew, or should have known, that small childen returning from school might not be visible from behind the high snow banks near the intersection. A motorist must exercise increased vigilance with respect to lookout and speed when he knews or should know that children are present. 3
Thus, as to both lookout and speed the record clearly supports the jury's determination that Hamann was negligent.
The crucial question then becomes whether Hamann's negligence was causal. Defendant contends that such negligence, if any, was not causal as a matter of law.
It is undisputed that Hamann never saw the plaintiff prior to the impact. It is also undisputed that the girl and the automobile collided while she was in the crosswalk, at a point about 10 feet north of the curb. There was some testimony that she was hurrying as she left the curb as distinguished from walking or running. The argument is made that there was nothing that Hamann reasonably could have been expected to do to avoid the accident, that the fact that he did not look to his right or left and did not see the plaintiff is of no consequence because she was going to collide with Hamann's car in any event.
We must conclude, however, that a proper lookout, and a reasonable speed under the conditions, would have given Hamann time to apply his brakes and avoid the accident, or time to alert the plaintiff of his approaching vehicle. 4 A car going 20 miles per hour would cover at least four times the distance the plaintiff, even 'hurrying,' at five miles per hour, could go, or 40 feet to the plaintiff's 10.
This is sufficient evidence to support the jury's finding that Hamann's negligence was a substantial factor in causing the accident. 5
The cases from other states cited by the defendant have been examined and are not applicable to the instant case. Most of the cases dealt with the question of whether an accident involving the defendant's car and the plaintiff had in fact occurred. In none of the cited cases was the defendant found negligent in the first instance (most cases expressly held that the defendant was not negligent). Therefore, the cause question never became material.
Jury Instructions.
Defendant argues that the trial court erred in refusing to give certain requested instructions. In addition to the ordinary instruction on burden of proof (Wis J I--Civil, Part I, 200) the following instruction was requested by the defendant:
'The burden is on the plaintiff to prove negligence of the defendant. The burden is not lifted by merely producing proof which, in some reasonable view of it, establishes a legitimate theory of (negligence), but with no greater certainty, from any fair viewpoint, than an opposing theory, ground on the evidence, of no such wrong * * *.
'Accordingly, if the evidence in this case is in such a state that the inference that plaintiffs were damaged by some cause not connected with the defendant is as strong as the inference that they were damaged by some cause connected with the defendant, then you can do nothing but speculate as to the cause and must, therefore, find that the plaintiffs have not met their burden of proof thereon.'
The court refused to give this additional requested instruction. The court also refused to give another lengthy requested instruction cautioning the jurors that speculation and conjecture could not be employed by them in deciding whether the plaintiff had met his burden of proof.
The instruction that was given covering burden of proof adequately informed the jury of its duty in this regard. The instruction stated:
'All of the questions of the special verdict which you are to answer, except those relating to (comparison of negligence and) damages, are to be answered either 'Yes' or 'No.' The burden of proof as to any such question is upon the party or parties who contend that you should answer the question 'Yes.' Such burden is to satisfy or convince you, to a reasonable certainty, by the greater weight of the credible evidence, that 'Yes' should be your answer. That means that before you are justified in answering the question 'Yes,' you must be satisfied that the greater weight of the credible evidence not only leads to the conclusion that the question should be answered 'Yes,' but it must also satisfy you to the point of reasonable certainty that 'Yes' should be your answer. If, after a fair consideration of all the evidence bearing upon the question, you become so satisfied or convinced that the answer should be 'Yes,' then it is your duty to so answer the question; but if you are not so satisfied or convinced, you should answer the question 'No.'
'By credible evidence is meant evidence which, in the light of reason and common sense, is worthy of belief.' 6
The additional instructions concerning burden of proof were properly refused by the trial court. These instructions would have been superfluous. The instruction given is adequate to properly instruct the jury where, as here, there is direct proof of negligence and causation. The failure to give these requested instructions was not error.
The defendant requested the following instruction relating to lookout:
'If you find that the operator of the automobile, Clarence Hamann, saw the pedestrian, Colleen Burke, as soon as it was reasonably and prudently possible for him to see her or if you find that in the exercise of ordinary care it was not possible to have seen the pedestrian, Colleen Burke, before Clarence Hamann saw her, then you should not find Clarence Hamann negligent with respect to lookout. In determining this issue as to lookout on the part of Clarence Hamann you are instructed that you are to consider all of the circumstances then and there existing, including other traffic, any obstructions to view and the size of the pedestrian, Colleen Burke and whether or not she was
The court refused to give this...
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