Dickman v. Schaeffer

• Decision Date: 07 June 1960
• Citation: 103 N.W.2d 922,10 Wis.2d 610
• Parties: Ronald DICKMAN by Francis J. Korf, his Guardian ad litem, and Harold Dickman, Plaintiffs, v. William SCHAEFFER and Superior Mutual Insurance Company, a Wisconsin corporation, Defendants-Respondents, Robert L. Wood and Farmers Mutual Automobile Insurance Company, a Wisconsin corporation, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 922

103 N.W.2d 922

10 Wis.2d 610

Ronald DICKMAN by Francis J. Korf, his Guardian ad litem and Harold Dickman, Plaintiffs, v. William SCHAEFFER and Superior Mutual Insurance Company, a Wisconsin corporation, Defendants-Respondents Robert L. Wood and Farmers Mutual Automobile Insurance Company, a Wisconsin corporation, Defendants-Appellants.

Supreme Court of Wisconsin.

June 7, 1960.

Lehman & Seymour, Elkhorn, for appellants.

Crosby H. Summers, Janesville, for respondents.

HALLOWS, Justice.

The questions raised by Wood are whether there is any credible evidence to support the verdict finding Schaeffer's negligent lookout was not causal and whether the verdict of the jury evinces a perverseness requiring a new trial. On the first question both parties agree that if there is any credible evidence to sustain the verdict of the jury, this court should not set the verdict aside. Evjen v. Packer City Transit Line, Inc., 1960, 9 Wis.2d 153, 100 N.W.2d 580; Smith v. Benjamin, 1952, 261 Wis. 548, 53 N.W.2d 619; Ray v. Milwaukee Automobile Ins. Co., 1939, 230 Wis. 323, 283 N.W. 799. There is no dispute between the parties that on review this court must accept the credible evidence most favorable to sustain the verdict. Ruid v. Davis, 1959, 8 Wis.2d 288, 99 N.W.2d 129. No question is raised that the evidence does not support the finding of the jury that Wood was causally negligent in respect to lookout and in making a left turn. Wood contends the verdict finding Schaeffer's negligent lookout was not causal is based on speculation and conjecture and not on any credible evidence. A jury cannot base its finding on conjecture or speculation. Rodenkirch v. Johnson, 1960, 9 Wis.2d 245, 101 N.W.2d 83; Hyer v. City of Janesville, 1898, 101 Wis. 371, 77 N.W. 729; Larson v. Splett, 1954, 267 Wis. 473, 66 N.W.2d 181.

The accident occurred about 8:20 p. m. November 3, 1958, on Clausen road in the town of Spring Prairie, Walworth county, Wisconsin. Clausen road is black-topped, runs north and south, and is 15 feet wide with no marked center line. In the area of the collision the road slopes up to the north. Wood, a city mail carrier and part-time insurance agent, lived on the west side of Clausen road. His gravel driveway joins Clausen road about 154 feet south of a crest of a hill measured to the center of the driveway. The driveway flares out to a width of 27 feet at its intersection with the road. At the time of the accident it was dark and the headlights of both cars were on. Wood was alone in his car proceeding north on Clausen road toward his home. At a point about one-eighth of a mile south of his driveway he turned on his left directional-turn signal. As he approached the point of his turn into the driveway he looked ahead to the top of the hill, but did not see Schaeffer's car. There is testimony that he started his turn either 10, 15, or 30 feet south of the intersection of the driveway with Clausen road and was going either 10 or 15 miles per hour when he made the turn.

Schaeffer was driving south on Clausen road with Ronald Dickman as a passenger and was traveling 40 to 45 miles per hour. Schaeffer testified he did not see the Wood car until he was over the crest of the hill and some four or five car lengths (66 or 82 1/2 feet) from Wood, and at that time the Wood car was making a left turn into the driveway and was sideways in the road with its headlights shining northwest. Schaeffer saw only the side of Wood's car and not the headlights. He put on his brakes, but not heavily, and turned to the left to go around the Wood car to avoid the collision. However, the front of Schaeffer's car struck the Wood car in the middle, pushing it into the bank on the west side of Clausen road. The Wood car came to rest headed east after making a 180-degree turn, with its front end on the edge of the road about 3 feet south of the driveway. Wood was thrown from the car some 20 feet to the south. The Schaeffer car stopped in a field, headed southwest with its rear end 27 feet from the edge of the road and 122 feet south from the front of Wood's car.

Wood claims the negligent lookout of Schaeffer was causal because if he had looked when he should have at the crest of the hill, he would have seen what his passenger, Dickman, saw, i. e., Wood making a left turn--and therefore had time to avoid the accident. This contention is based on Dickman's testimony on adverse examination when he was the plaintiff in this action. He did not testify at the trial. The difficulty with this version of the evidence is that it is not the most favorable to sustain the verdict. The defendants, Wood and his insurer, contend Dickman's testimony cannot be disregarded because it stands uncontradicted, citing Johnson v. Aetna Life Ins. Co., 1914, 158 Wis. 56, 147 N.W. 32, and Thiel v. Damrau, 1954, 268 Wis. 76, 66 N.W.2d 747, and any other version of the accident is based on speculation and conjecture.

However, from Wood's testimony of his speed and the place where he started to make his turn, and the speed of Schaeffer's car, the jury could reasonably infer that had Schaeffer looked at the crest of the hill he would have seen Wood on his own side of the road, with no indication of a left turn except his signal light. At that time Schaeffer had a right to assume Wood was going to make a legal left turn in accordance with the law of the road, and not cut in ahead of him. Dinger v. McCoy Transportation Co., 1949, 254 Wis. 447, 37 N.W.2d 26; Hansen v. Storandt, 1939, 231 Wis. 63, 285 N.W. 370; Schultz v. Miller, 1951, 259 Wis. 316, 48 N.W.2d 477.

The jury could reasonably infer when Wood started his left turn without seeing Schaeffer and at a time when such turn could not be made with reasonable safety, findings which are not contested on this appeal, Schaeffer at the legal speed he was going could not have avoided the collision even if he had looked before he did. The jury had a right to pass on the credibility of Dickman's testimony and disregard it when found to be contradictory to permissible inferences which could be drawn from Wood's testimony. We do not deem it necessary to mathematically demonstrate the correctness of the jury's finding, as the trial court did in its written opinion. When several inferences may reasonably be drawn from credible evidence, one of which will support a claim of one of the parties and the other inferences will not, it is for the jury to determine the proper inference to be drawn from the conflicting evidence. Although we could sustain a contrary result if found by the jury, it is our duty not to set aside a verdict when it is approved by the trial court, as here, and when there is credible evidence to sustain it. Maccaux v. Princl, 1958, 3 Wis.2d 44, 87 N.W.2d 772; Kanzenbach v. S. C. Johnson & Son, Inc., 1956, 273 Wis. 621, 79 N.W.2d 249. There is sufficient credible evidence to support the verdict that Schaeffer was not causally negligent as to lookout or negligent as to management and control.

In their second argument the defendants, Wood and his insurer, contend the verdict was inconsistent and therefore perverse and the perverseness affected the entire verdict, requiring a new trial. Inconsistency in the verdict does not necessarily exist because the jury awarded $500 for loss of wages and nothing for pain and suffering, even considering the court inserted $220.90 in the verdict as the amount of medical expense. In most cases where there are medical bills and loss of services, pain and suffering exist; but we cannot say as a matter of law that is necessarily true in every case and therefore a verdict is inconsistent if it does not award some damages for pain and suffering when it allows medical expense and loss of wages. There is no question here of permanent injury.

Was the verdict perverse or the result of passion or prejudice? The evidence of pain and suffering as given by Wood was entirely subjective. The jury was not bound to accept such testimony. Wood saw his doctor once for treatment and several times for check-ups, was in the hospital...