Fink v. Reitz
| Decision Date | 05 October 1965 |
| Citation | 28 Wis.2d 319,137 N.W.2d 21 |
| Parties | Deloris FINK et al., Appellants, v. Donald REITZ et al., Respondents. |
| Court | Wisconsin Supreme Court |
John T. Pryor, Charles Saggio, Milwaukee, for appellants.
Wickham, Borgelt, Skogstad & Powell, Milwaukee, Edmund W. Powell, Milwaukee, of counsel, for respondents.
Plaintiffs assert there are six issues, which we discuss as follows:
1. New trial in the interest of justice. There were two versions of the collision. The gist of Mrs. Fink's testimony is that she made a right turn from the westernmost lane of traffic; that she had traveled in that lane for some distance; that as she approached Abbott street she gradually slowed down, activated her directional signal for a right turn, flashed her brake lights by pumping her brakes, and gave a hand singal for a right turn. She testified that after the collision Reitz told her he was sorry he didn't see her, but the sun blinded him.
Reitz' version was, in substance, that when he first saw the Fink car, it was ahead of him in the westernmost lane, the same as he; that the cars were 100 feet apart; that about a half block before Abbott street, he observed a 'nondescrip, a dangling'-type of arm signal, and the Fink car turned to the center lane and decreased its speed, all of which led him to conclude that Mrs. Fink was preparing to make a left turn; that he took his foot from the accelerator; that just at Abbott street, the Fink car swerved sharply to the right; that Reitz turned to the right, applied his brakes, and struck the right rear of the Fink car when his own car was moving very slowly. Reitz testified he had watched the rear of the Fink car and saw no directional signals nor brake lights. A passenger in his car corroborated his testimony in several respects. No one asked him whether he made the statement attributed to him by Mrs. Fink.
The jury did not exonerate Reitz, but clearly did not believe Mrs. Fink. If the facts were as Reitz related them, he had some basis for concluding that Mrs. Fink was preparing to make a left turn, although Abbott street did not extend east of Highway 100, and she could not have made a left turn until several hundred feet further on.
The evidence supports the finding that both were causally negligent. Reitz' testimony was not incredible. Comparison of negligence is peculiarly within the province of the jury. 1 We cannot say that the apportionment in this case is not supported under any reasonable view of the evidence. Neither does it appear probable that justice has miscarried, so as to cause us to reverse in our discretion under sec. 251.09, Stats.
2. Perversity of verdict allegedly shown by findings as to damages. The jury determined that fair allowances to Mrs. Fink would be as follows: $1,000 for loss of earnings to date; $2,500 for pain and suffering to date; $3,000 for pain, suffering, and disability in the future. A zero was inserted as an answer to the question on damages to Mr. Fink for loss of society and companionship.
Plaintiffs contend that the last answer is perverse because there was testimony that Mrs. Fink was in the hospital or confined at home for several weeks, did no housework for about one year, and had to stay in traction during her sleep. They contend that wage loss of $2,500 was proved; and that the $5,500 awarded for suffering and disability was inadequate.
Defendants contend that the work schedules followed by the Finks before the accident were such that they spent very little time together, and that there are reasonable interpretations of the testimony under which the other damages found were adequate.
In view of the determination of Judge Landry that the verdict was not perverse, we find it unnecessary to resolve the question whether the damages were or were not inadequate. Assuming that they were, inadequacy of damage allowances does not compel a conclusion that the answering of liability questions in a manner unfavorable to plaintiffs was perverse.
'The rule is that where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict preverse. * * *' 2
In passing on motions after verdict, Judge Landry indicated that he did not, consider the damages inadequate, but that in any event the verdict was not perverse.
3. Separate questions as to particular aspects of negligence. Plaintiffs made a timely request for a special verdict and the court submitted a special verdict to the jury. The questions as to negligence of each party simply inquired whether that party was negligent with respect to the manner in which he operated his automobile. Other questions inquired as to causation. The questions were not subdivided so as to inquire as to the particular respects in which the automobile was negligently operated. Plaintiffs argue that the form of special verdict submitted by the court (often referred to as the 'ultimate fact verdict') does not comply with sec. 270.27, Stats. In making this argument, plaintiffs overlook the sentence in that section: 'In cases founded upon negligence, the court may submit separate questions as to the negligence of each party, and whether such negligence was a cause without...
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