DeGroff v. Schmude

• Decision Date: 02 March 1976
• Docket Number: 533,Nos. 532,s. 532
• Citation: DeGroff v. Schmude, 71 Wis.2d 554, 238 N.W.2d 730 (Wis. 1976)
• Parties: James R. DeGROFF, Plaintiff, v. Orville A. SCHMUDE et al., Defendants-Respondents, and Barry Schultz and Horace Mann Insurance Company, a Foreign Insurance Corporation, Defendants-Appellants. Orville A. SCHMUDE, Plaintiff-Respondent, v. Barry SCHULTZ and Horace Mann Insurance Company, a Foreign Insurance Corporation, Defendants and Third-Party Plaintiffs and Appellants, and Thomas A. Stobbe and Travelers Indemnity Company, a Foreign Insurance Corporation, Third-Party Defendants-Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 730

238 N.W.2d 730

71 Wis.2d 554

James R. DeGROFF, Plaintiff, v. Orville A. SCHMUDE et al., Defendants-Respondents, and Barry Schultz and Horace Mann Insurance Company, a Foreign

Insurance Corporation, Defendants-Appellants.

Orville A. SCHMUDE, Plaintiff-Respondent, v. Barry SCHULTZ and Horace Mann Insurance Company, a Foreign

Insurance Corporation, Defendants and Third-Party

Plaintiffs and Appellants,

and

Thomas A. Stobbe and Travelers Indemnity Company, a Foreign

Insurance Corporation, Third-Party Defendants-Respondents.

Nos. 532, 533 (1974).

Supreme Court of Wisconsin.

Submitted Feb. 4, 1976.

Decided March 2, 1976.

The action is for personal injuries resulting from a rear-end-type automobile accident involving three cars. The order appealed from granted a new trial as to the liability issues in the interest of justice upon the ground the comparison of negligence as found by the jury was against the great weight and clear preponderance of the evidence. The order also awarded costs to one of the litigants. The appeal is from both aspects of the order.

The accident occurred in the early morning hours of January 1, 1970. An automobile driven by the appellant, Barry Schultz, struck the rear end of an automobile owned by Orville Schmude as it was stalled along a Waushara county highway. At the time of the accident the Schmude vehicle was parked nose-to-nose with an automobile owned by Thomas A. Stobbe. Orville Schmude and James R. DeGroff were standing between the vehicles hooking up a set of battery jumper cables in an attempt to start the Schmude vehicle. The impact from the Schultz vehicle propelled Schmude's automobile forward, inflicting physical injuries to both Schmude and DeGroff.

On August 31, 1972, James DeGroff commenced an action against Orville Schmude, Thomas A. Stobbe and Barry Schultz seeking damages for injuries caused by the accident. Also joined as defendants were Travelers Indemnity Company, which had issued separate policies of liability insurance to Schmude and Stobbe, and Horace Mann Insurance Company, the liability insurer of the Schultz vehicle. Travelers and Schmude answered, denying the allegations of negligence, and cross-complained for contribution from Barry Schultz and Horace Mann Insurance Company. A similar answer and cross-complaint were filed on behalf of Travelers and Thomas Stobbe. Barry Schultz and Horace Mann Insurance Company also answered, denying negligence, and cross-complained against Travelers, Stobbe and Schmude for contribution.

Subsequently Orville Schmude commenced a separate action against Barry Schultz and Horace Mann Insurance Company to recover damages for his personal injuries caused by the accident. Schultz and Horace Mann answered, denying negligence and asserting Schmude's contributory negligence as an affirmative defense. Schultz and Horace Mann commenced a third-party action against Thomas Stobbe and Travelers for contribution.

The DeGroff and Schmude actions were consolidated for trial. Prior to the commencement of the trial, DeGroff settled his claim and, upon stipulation by the parties, an order was entered dismissing his complaint. The trial on the Schmude claim was to a jury on February 18 and 19, 1974. The order granting the new trial was dated June 25, 1974. Barry Schultz and Horrace Mann Insurance Company appeal.

Juneau, Johnston & Gabler, S.C., Marshfield, for appellants.

Russell H. Younglove, Berlin, and Fulton, Mann & Nehs, Ltd., Appleton, for defendants-respondents, Orville A. Schmude and Travelers Indem. Co.

Crowns, Merklein, Midthun & Metcalf, Wisconsin Rapids, for defendants-respondents, Thomas A. Stobbe and Travelers Indem. Co.

BEILFUSS, Justice.

The issues are whether it was error to order a new trial in the interest of justice and whether it was error to award costs to one party prior to the new trial.

From the testimony adduced at the trial it appears that this accident occurred about one-quarter mile south of the unincorporated village of Spring Lake on County Trunk Highway F between the cities of Wautoma to the northwest and Berlin to the southeast. A motorist traveling south on 'F' was required to stop at a stop sign in Spring Lake. Beyond the stop sign the highway ascends a slight hill and crosses a set of railroad tracks. At the top of the hill the highway curves to the west. A barn which is located at the crest of the hill obscures a southbound motorist's view of the curve to some extent. Near the point of the collision the roadway was about 19 1/2 feet wide with narrow shoulders and a sharply sloping ditch on the west side. All witnesses agreed that on the evening of the accident that area of the highway was snowpacked and slippery. Some witnesses testified that it had snowed earlier in the evening and Orville Schmude testified that there was a light fog or haze.

Schmude stated that he attended a New Year's party at a country club near Berlin on the evening of the accident. At about 12:15 a.m., he received a telephone call from his younger son informing him that an older son was struck in a ditch near Spring Lake and wanted some help getting out. Schmude immediately left for Spring Lake on County F in his 1969 Keep station wagon. The vehicle was equipped with a four-wheel drive and an electric winch located on the front bumper. Schmude approached Spring Lake from the south and found his son's car in the ditch on the left or west side of the highway. He turned his vehicle around and lined it up at an angle on the highway with his son's car. Schmude attached the cable and attempted to winch the car out of the ditch. However, the Jeep would not hold on the slippery highway. Schmude put the vehicle in four-wheel reverse and operated the winch at the same time but the Jeep rotated to the west shoulder of the roadway facing south and the motor stalled. Schmude testified that the right side of his vehicle was against a small snowbank on the shoulder of the highway and that a foot to a foot-and-a-half of the vehicle remained on the roadway. No witness placed more than half of the Jeep on the road.

The Jeep would not start because the battery was too law. Schmude turned off all the lights and intended to wait with his son until the battery regenerated enough strength to restart the vehicle. However, as the two were standing near the vehicle, another automobile came by on the highway from the north 'rather close' to the Jeep so Schmude turned the parking and taillights back on. The vehicle was also equipped with emergency flashers but Schmude did not turn them on. Schmude stated he checked the lights to see that they were working and that they appeared to be of normal brightness.

Shortly after the lights on the Jeep were turned back on, Thomas Stobbe and his passenger, James DeGroff, approached from the north in his automobile and stopped. Stobbe stated he first saw the taillights on Schmude's Jeep as he crossed the railroad tracks sough of Spring Lake. DeGroff did not recall seeing any taillights but did see the Jeep itself as Stobbe passed the barn at the crest of the hill. The speed limit in the area was 25 miles per hour and Stobbe was going about 30 miles per hour but had no difficulty stopping. Stobbe recalled that the Jeep was as far off the roadway as it could get without crossing the snowbank and that he had no trouble getting by on the left.

As Stobbe stopped alongside the Jeep, Schmude recognized DeGroff and, after some discussion, the parties decided to attempt to start the Jeep with the use of battery jumper cables attached to Stobbe's auto. Stobbe continued south on 'F,' turned around in the first driveway, and returned to park directly in front of the Jeep with the front of his vehicle headed north. Both Schmude and Stobbe stated the two vehicles were directly in line with the front ends about half-a-foot apart. The headlights, four-way emergency flashers and two amber 'fog lamps' on the Stobbe vehicle were turned on. The hoods on both vehicles were raised as Schmude, DeGroff and Stobbe attempted to attach the jumper cables. Schmude and DeGroff were standing between the vehicles. One end of the cable which Stobbe was attempting to connect to his automobile dropped to the ground and as he stopped to pick it up he saw the lights of another vehicle headed toward the rear of the Jeep. He yelled for the others to watch out and jumped back just before the impact. Both Stobbe and DeGroff testified to hearing a sound of brakes being applied or of tires squealing just before the collision. Schmude neither saw nor heard anything. Stobbe also stated that a second impact occurred about thirty seconds after the initial collision.

Barry Schultz, the driver of the vehicle which struck Schmude's Jeep, left his home at about 6:30 p.m., on New Year's eve and attended a card party at a friend's house until about 8:30 or 8:45. While there Schultz consumed four mixed drinks. After leaving his friend's house, Schultz went to the home of his girl friend, Dianna Walejko (now Dianna Grim), who lived on a farm about 600 yards south of the accident site. Schultz had a glass of champagne at the Walejko residence before he and Dianna left at about 9:30 to attend the New Year's dance at Camp Waushara. While at the dance Schultz consumed four to five small bottles of beer. The couple left the dance to return to the Walejko home at about 1:00 a.m.

Schultz was familiar with the Spring Lake area and knew that the speed limit was 25 miles per hour. He was also aware that the barn limited visibility south on 'F' from Spring Lake. Schultz proceeded from the stop sign in Spring Lake at about 30 miles per hour and first saw a headlight approximately eight carlengths away as he passed by the barn. He then saw the taillights on the Jeep but made no immediate attempt to stop because he thought two vehicles were passing on the roadway ahead. Dianna Walejko Grim stated at the trial that she first saw the glow of lights over the...