Cibik v. Rural Mut. Ins. Co.

• Decision Date: 26 August 1992
• Docket Number: No. 92-0045,92-0045
• Citation: Cibik v. Rural Mut. Ins. Co., 492 N.W.2d 191, 170 Wis.2d 734 (Wis. App. 1992)
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. John CIBIK, Plaintiff-Respondent, v. RURAL MUTUAL INSURANCE COMPANY, Defendant, State Farm Mutual Automobile Insurance Company, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 191

492 N.W.2d 191

170 Wis.2d 734

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

John CIBIK, Plaintiff-Respondent, v. RURAL MUTUAL INSURANCE COMPANY, Defendant State Farm Mutual Automobile Insurance Company, Defendant-Appellant.

No. 92-0045.

Court of Appeals of Wisconsin.

Aug. 26, 1992.

Appeal from a judgment of the circuit court for Ozaukee county: Walter J. Swietlik, Judge. Affirmed.

Circuit Court, Ozaukee County

AFFIRMED.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

PER CURIAM.

State Farm Mutual Automobile Insurance Company appeals from a judgment entered pursuant to a jury's verdict finding its insured, Constance Cibik, to be fifteen percent causally negligent for certain personal injuries suffered by her husband, John Cibik, in an automobile accident. State Farm appeals, claiming that the record demonstrated that its insured was not negligent, or, alternatively, her alleged negligence was not causally related to the accident and that the trial court erred in failing to order a new trial on liability. Because we conclude that the jury's verdict was supported by credible evidence and that the trial was free of the errors alleged by State Farm, we affirm.

This action arose out of a two-vehicle accident that occurred about 11:00 p.m. on June 6, 1987 at the intersection of Wauwatosa Road and Donges Bay Road in Mequon. Mrs. Cibik was driving north on Wauwatosa Road; her husband was seated in the front passenger seat. Mrs. Cibik noticed that the posted speed limit was twenty-five miles per hour, but she accelerated to between thirty and forty miles per hour, following a box-shaped truck by approximately four car lengths. One mile before the accident, Mrs. Cibik's husband looked over at the speedometer and saw that their car was traveling between thirty-five and forty miles per hour. Mr. Cibik warned his wife to slow down. She answered, "Ya, ya." Mr. Cibik did not feel their vehicle decelerate and Mrs. Cibik testified that she did not slow down after her husband's warning.

Mrs. Cibik continued to follow the box-shaped truck, looking straight ahead as she drove into the intersection of Wauwatosa Road and Donges Bay Road. At that time, Grant Baehmann was driving his vehicle south on Wauwatosa Road. As he attempted to turn left at the intersection, his car collided with the Cibiks' vehicle. Mrs. Cibik testified that she did not see Baehmann's vehicle until the accident occurred. A driver following Baehmann stated that he had been driving erratically for approximately one block before the accident. Baehmann told police at the scene that he believed that the accident occurred because the Cibiks' vehicle was "traveling too fast." Mr. Cibik was injured in the accident.

At the close of the evidence, State Farm filed a motion for a directed verdict, requesting the trial court to declare that Mrs. Cibik was not negligent and not causally negligent as a matter of law. The trial court denied the motion and submitted these factual issues to the jury. The jury found both drivers to be negligent in causing Mr. Cibik's injuries and awarded him $85,500 in damages. State Farm moved the trial court to change the answers to the special verdict questions regarding whether Mrs. Cibik was negligent at the time of the accident and whether her negligence was a cause of the accident. State Farm also moved the trial court to order a new trial on the issue of liability. The trial court denied these motions.

State Farm's appeal raises three central issues: (1) whether the trial court erred in denying State Farm's motion for a directed verdict or its motion to change the jury's answer to the special verdict question on the issue of Mrs. Cibik's alleged negligence; (2) whether the trial court erred in denying State Farm's motion for a directed verdict or to change the jury's answer to the special verdict question on the issue of whether Mrs. Cibik's alleged negligence was a cause of the accident; and (3) whether the trial court erred in denying State Farm's motion for a new trial on the issue of liability.

Review of the trial court's orders denying State Farm's motion for a directed verdict and motion to change the jury's answers to certain of the special verdict questions necessitates the application of two standards of review to the record. "For a court to hold that no jury question is presented and that the actor is not negligent as a matter of law, 'the court must be able to say that no properly instructed, reasonable jury could find, based upon the facts presented, that the defendant[ ] failed to exercise ordinary care.' " LePoidevin v. Wilson, 111 Wis.2d 116, 124, 330 N.W.2d 555, 559 (1983) (citation omitted). " 'When a jury verdict is attacked we inquire only whether there is any credible evidence that, under a reasonable view, supports the verdict. This is especially so when the verdict has the trial court's approval.' " Chille v. Howell, 34 Wis.2d 491, 498, 149 N.W.2d 600, 604 (1967) (citations omitted). "[T]he test on appeal is whether the judge abused his discretion in concluding that the credible evidence supports the verdict." Featherly v. Continental Ins. Co., 73 Wis.2d 273, 285, 243 N.W.2d 806, 815 (1976). Review of the record under both standards compels us to conclude that the trial court correctly denied State Farm's motions.

NEGLIGENCE

A person is negligent "when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm." Osborne v. Montgomery, 203 Wis. 223, 242, 234 N.W. 372, 379 (1931). In this case, the claims of negligence against Mrs. Cibik were based upon allegations of excessive speed and insufficient lookout.

The undisputed evidence indicated that Mrs. Cibik was driving through a construction zone at night, closely following a box-shaped truck. One mile before the accident, Mrs. Cibik was driving between thirty and forty miles per hour in a twenty-five mile per hour zone. Although her husband warned her to slow down, Mrs. Cibik testified that she continued at the same rate of speed at the time of the accident. She also admitted to the jury that she did not see Baehmann's vehicle until the collision occurred.

As a preliminary matter, State Farm attacks the Cibiks' testimony regarding the speed of their vehicle as conjecture or as being too remote. State Farm also attacks the opinion attributed to Baehmann that Mrs. Cibik was "traveling too fast" at the time of the accident as too vague. We reject these complaints.

The driver of a vehicle has the right to estimate the speed at which he or she is proceeding. Millonig v. Bakken, 112 Wis.2d 445, 453, 334 N.W.2d 80, 84 (1983). Accordingly, Mrs. Cibik's testimony regarding her speed at the time of the accident was not conjecture. We further conclude that the trial court did not abuse its discretion in admitting the Cibiks' testimony regarding their vehicle's speed one mile before the accident. Mr. Cibik's observations of their vehicle's speed and his wife's response to his warning were not remote in view of the absence of any evidence that Mrs. Cibik slowed down before the collision.

We also reject State Farm's contention that Baehmann's opinion that Mrs. Cibik's vehicle was "traveling too fast" was legally insufficient to support a finding of negligence as to speed. While Baehmann could not estimate the actual speed of the Cibiks' vehicle due to Baehmann's brief opportunity to observe the Cibiks' vehicle, this testimony was not devoid of probative evidence of the vehicle's speed. Cf. Western Casualty & Sur. Co. v. De Smidt, 50 Wis.2d 672, 678-79, 184 N.W.2d 848, 851 (1971) (witness's inability to estimate a driver's speed in miles per hour does not eliminate the probative value of her testimony that the driver "was proceeding at a high rate of speed"). Accordingly, it was properly an issue for the jury to determine the weight and credibility to assign to Baehmann's opinion.

Having concluded that the trial court properly admitted the testimony of the Cibiks and Baehmann regarding the speed of the Cibiks' vehicle at the time of the collision, we turn to the issue of whether the trial court erred in denying State Farm's motion for a directed verdict that Cibik was not negligent as to speed or lookout as a matter of law. " '[T]here is negligence on the part of the driver of an automobile when [s]he proceeds at a speed which [s]he cannot stop [her] vehicle within the distance [s]he can see ahead.' " Bailey v. Hagen, 25 Wis.2d 386, 392, 130 N.W.2d 773, 776 (1964) (citation omitted). Mrs. Cibik testified that she could only see oncoming...