Fox v. Kaminsky

• Citation: 239 Wis. 559,2 N.W.2d 199
• Parties: FOX et al. v. KAMINSKY et al.
• Decision Date: 10 February 1942
• Court: United States State Supreme Court of Wisconsin

239 Wis. 559

2 N.W.2d 199

FOX et al.

v.KAMINSKY et al.

Supreme Court of Wisconsin.

Feb. 10, 1942.

Appeal from a judgment of the Circuit Court for Waupaca County; H. J. Severson, Judge.

Affirmed in part, and reversed in part.

This was an action commenced on January 27, 1941, by Meta Fox and Lloyd Fox, plaintiffs, against Frank Kaminsky and Farmers Mutual Automobile Insurance Company, a corporation, defendants, to recover for personal injuries and damage to Meta Fox's car caused by collision between that car driven by Lloyd Fox and a car driven by Kaminsky. Upon motion of defendants, Hartford Accident and Indemnity Company, a foreign insurance corporation, and the carrier of liability insurance upon the Fox car, was impleaded as defendant and Kaminsky cross-complained against Lloyd Fox and his insurance carrier for damages to his car, medical care and loss of services of his wife and for contribution in the event he sustained any liability.

The action was tried to the court and a jury and a special verdict rendered. Kaminsky was found causally negligent (1) as to lookout and control, and (2) as to driving on the wrong side of the highway. He was exonerated as to negligent speed. Lloyd Fox was found causally negligent as to (1) speed, (2) lookout and control, (3) driving on the wrong side of the highway. Meta Fox was found not negligent. As between Kaminsky and Lloyd Fox, the negligence was apportioned 37 1/2% to the former, and 62 1/2% to the latter. Damages were awarded to Meta Fox for injury to her car and personal injuries in the sum of $1,400; to Lloyd Fox, $650 for personal injuries; to Frank Kaminsky, $2,200 for damage to automobile and for personal injuries.

Upon motions after verdict, the trial court entered judgment in favor of Meta Fox against Kaminsky with contribution against Lloyd Fox, dismissing Lloyd Fox's complaint, and in favor of Kaminsky and against Fox and his insurance carrier for $1,641.77. Plaintiff, Lloyd Fox, and all the defendants appeal. There is a motion to review by plaintiff. The material facts will be stated in the opinion.

Orville S. Luckenbach, of Shawano, and Bird, Smith, Okoneski & Puchner, of Wausau (Richard P. Tinkham, Jr., of Wausau, of counsel), for appellants.

Genrich & Genrich, of Wausau (Herbert L. Terwilliger, James A. Fitzpatrick, and William J. Hoffmann, all of Wausau, of counsel), for respondents.

WICKHEM, Justice.

Lloyd and Meta Fox were husband and wife and resided at Marion, Wisconsin. Meta Fox owned a Plymouth car on whose purchase she had turned in a second-hand car, her husband keeping up the payments and habitually using the car with her consent. On November 16, 1940 Lloyd Fox drove this car home and invited his wife and son to take a trip to a Shawano lake to see whether it was free from ice and available for duck shooting. In the hope that he might discover the condition of the Embarrass River, Fox drove along certain side roads which afforded a view of that river. At the time of the accident he was driving north on a town road which was well gravelled and along which there was little traffic. Just before the accident he proceeded up a gradual hill which obscured his view. The Kaminsky car was proceeding south and approaching the top of the hill, and a collision occurred. The testimony of the Foxes and of Kaminsky was contradictory as to where each car was driving. Each claimed that the other was driving to the left of the center of the highway. The condition of the cars after the accident indicates that the Fox car was struck back of the front left fender by the front of the Kaminsky car.

It is not claimed that the answers to the special verdict are not sustained by the evidence. The principal controversy from the standpoint of the appellant, Fox, has no relation to, and does not affect the right to recovery of Meta Fox. Lloyd Fox contends that there was prejudicial error in excluding the testimony of a disinterested witness who noted the speed of the Fox car some 2,000 feet south of the collision and some 600-900 feet east. This witness was approaching the town road on which this accident occurred, and was facing the road from a somewhat elevated point of view. The Fox car passed the intersection of the road on which this witness was travelling at a distance of 600 to 900 feet from the witness. He judged the speed of the Fox car to be 35 to 40 miles an hour, stated that he had a full view of the road as the Fox car proceeded the 2,000 feet to the point of accident, and that the Fox car, if anything, decreased its speed as it went up the hill towards the scene of the accident.

The matter has given us some difficulty, but we are of the view that the exclusion of this evidence constituted error. While it may be true that estimates of speed at a distance of 2,000 feet or more may have so little probative value that their exclusion from evidence is at least nonprejudicial, the situation here is different. There can be no question that an estimate of the speed of the Fox car as it passed the intersection some 600 to 900 feet away and at right angles to the line of travel of witness was within the testimonial qualifications of the witness. In this connection, see Ronning v. State, 184 Wis. 651, 200 N.W. 394. The speed at this point, of course, was wholly immaterial, but since the witness was driving at right angles to Fox's line of travel and occupied a high point from which observation could be advantageously made, he could at least testify that there was no material or substantial increase of speed during the 2,000 feet following the intersection.

The more difficult question is whether the exclusion of the evidence was prejudicial, but we have been unable to escape the conclusion that it was. It is plain from the verdict of the jury that the factor which differentiated in quality the negligence of Kaminsky and Fox was excessive speed on the part of Fox, and that upon this factor the jury found Fox substantially more negligent than Kaminsky. To be sure, there was in evidence the testimony of Fox on adverse examination that he approached the scene of the accident at a speed of from 40 to 55 miles an hour, and testimony of Meta Fox on adverse examination that at the time of the accident Fox was going...