Crossman v. Gipp

• Decision Date: 05 June 1962
• Citation: Crossman v. Gipp, 115 N.W.2d 547, 17 Wis.2d 54 (Wis. 1962)
• Parties: Raymond CROSSMAN et al., Respondents, v. Richard W. GIPP et al., Appellants. Raymond CROSSMAN, Respondent, v. Richard W. GIPP et al., Appellants, (Two notices of appeal.) Barbara CROSSMAN, by her Gdn. ad Litem, Robert Robinson, Respondent, v. Richard W. GIPP et al., Appellants, (Two notices of appeal.) Robert CROSSMAN, by his Gdn. ad Litem, Robert Robinson, Respondent, v. Richard W. GIPP et al., Appellants.
• Court: Wisconsin Supreme Court

Page 547

115 N.W.2d 547

17 Wis.2d 54

Raymond CROSSMAN et al., Respondents, v. Richard W. GIPP et al., Appellants.

Raymond CROSSMAN, Respondent, v. Richard W. GIPP et al., Appellants, (Two notices of appeal.)

Barbara CROSSMAN, by her Gdn. ad Litem, Robert Robinson, Respondent, v. Richard W. GIPP et al., Appellants, (Two notices of appeal.)

Robert CROSSMAN, by his Gdn. ad Litem, Robert Robinson, Respondent, v. Richard W. GIPP et al., Appellants.

Supreme Court of Wisconsin.

June 5, 1962.

This litigation involves a single automobile accident which gave rise to six cases, four of which are here on appeal.

The physical facts of the collision are as follows:

Location: Intersection of Wisconsin Highway 26 and County Trunk B in Jefferson county.

Time: Sunday, June 14, 1959, at 11:45 a. m.

Parties involved: Richard W. Gipp (defendant-appellant), traveling with his wife and daughter in a 1957 Buick on Highway 26; Mrs. Mary Crossman (plaintiff-respondent), driver of a 1956 Buick which was proceeding along Trunk B; passengers in the Crossman car were her three children, Barbara, six (plaintiff-respondent), Robert, four (plaintiff-respondent), and Mary, twelve (killed in the accident). The fourth passenger in the Crossman car was Miss Isabelle Brennan, an aunt of Mrs. Crossman. Miss Brennan died as a result of injuries sustained in the mishap.

Homer and Jane Stabenow, who were traveling in a car behind Gipp, and Heriberto Saenz, a Mexican worker who was in a nearby school yard, were eyewitnesses.

On the Sunday morning in question Mrs. Crossman was returning from Sunday school in Johnson Creek. She was driving eastward along Trunk B toward the intersection of Highway 26, which is an arterial highway. Gipp had left Whitewater that morning and was driving north on Highway 26 to his home in Shawano.

The intersection of Highway 26 and County Trunk B is located on relatively flat terrain. Automobiles approaching from the south on 26 can be seen for at least one-half mile from the place where B intersects 26. June 14, 1959, was a clear day with excellent visibility; both highways were dry. The statutory speed limit there is 65 miles per hour.

Mrs. Crossman, traveling on B, arrived at the intersection first. She stopped at the stop sign for approximately two to three seconds. She testified that she saw no cars approaching from either direction and proceeded out onto Highway 26, intending to cross the highway and re-enter B on the opposite side. Mrs. Crossman did not see Gipp until the cars collided.

Gipp, traveling north on Highway 26, first saw Mrs. Crossman when he was about 400 yards from the intersection. He saw her car stop at the intersection. He let up on his accelerator as he approached the intersection. He estimated he was 200 feet from the intersection when he observed Mrs. Crossman enter 26, and his speed was between 55 and 60 miles per hour. (The speed was corroborated by disinterested witnesses Homer and Jane Stabenow, while witness Heriberto Saenz estimated Gipp's speed at 75 miles per hour.) When he saw Mrs. Crossman enter Highway 26, Gipp 'stood on' his power brakes as hard as he could. He continued straight down his lane and did not sound his horn.

The cars collided in Gipp's lane; the left front of Gipp's car struck the rear wheel of the Crossman vehicle spinning it into a center island on Highway 26.

By special verdict the jury found Gipp not negligent as to speed and negligent as to management and control. The trial court found Mrs. Mary Crossman negligent as to lookout and failure to yield the right-of-way. The jury found Gipp 20 per cent causally negligent and Mrs. Crossman 80 per cent causally negligent.

The trial court, thus, dismissed the suits wherein Mrs. Crossman appeared as plaintiff. The court denied defendants' motion to change the jury's answers as to Gipp's management and control but reduced the damages as assessed by the jury.

Defendants have appealed in toto from the judgments in favor of Barbara Crossman and in favor of Raymond Crossman, as father of Mary, who was killed in the accident, and as father of Robert and Barbara who were injured. The appellants submit, as a matter of law, they were not guilty of causal negligence and all judgments against them should be reversed. The respondents Raymond and Barbara, plaintiffs in their individual cases, have cross-appealed because the trial court reduced the jury's awards to them. They submit judgment should be modified to conform to the verdict and, as so modified, affirmed.

Additional facts will be given in the opinion.

Roberts, Boardman, Suhr, Bjork & Curry, Madison, for appellants.

Clark Dempsey, Robert Robinson, Whitewater, for respondents.

BROWN, Chief Justice.

The appeals present these issues:

(1) Was there any credible evidence to support the jury's finding that defendant-appellant Gipp was negligent as to management and control?

(2) Should the Emergency Doctrine be applied in this case?

(3) Was the trial judge correct in finding that the awards of $50,000 to respondent Barbara Crossman; $4,104.07 to respondent Raymond Crossman, and $2,700 to Raymond Crossman were excessive?

Management and Control

Defendants' appeal depends upon the validity of their assertion that the emergency doctrine absolves them of causal negligence. The doctrine, as stated in Papacosta v. Papacosta (1957), 2 Wis.2d 175, 85 N.W.2d 790 [cited by appellants], is that a person faced with an emergency which his conduct did not create or help to create, is not guilty of negligence in the methods he chose, or failed to choose, to avoid the threatened disaster. Appellants contend that they are such a person.

The trial court instructed the jury on the effect of the emergency rule in answering the questions pertaining to Gipp's management and control. Nevertheless the jury found him guilty of causal negligence in that respect, thereby finding that the emergency rule did not excuse him. Is there evidence, which the jury might believe, to support that conclusion? We consider that there is:

By his own testimony, Gipp saw Mrs. Crossman when he was 400 yards from the intersection. He was always aware of her presence thereafter. He saw her stop at the arterial stop sign for, he estimated, one second, and then she entered the arterial. At the moment he was 200 feet away from the crossing. Immediately he 'stood on his brakes' and did no more. It must be conceded that at a speed of 55 to 60 miles per hour he could not stop short of the intersection, but he did know that Mrs. Crossman was intending to enter Highway 26 and he saw her the instant she began to do so. Her actions informed him that she did not know of his approach. The jury was entitled to believe that nothing in the situation prevented him from timely blowing his horn to warn Mrs. Crossman that he was coming through and she should yield him the right-of-way. The emergency rule excuses a person entitled to the rule's protection who has chosen an alternative which may in retrospect appear not to have been the best way to avoid the collision. The emergency here was not such that Gipp could justifiably choose between attempting to stop or blowing his horn. The jury might reasonably conclude that the situation demanded that at least he blow his horn, and had time...