Gage v. Seal

• Decision Date: 28 November 1967
• Citation: Gage v. Seal, 36 Wis.2d 661, 154 N.W.2d 354 (Wis. 1967)
• Parties: Lawrence GAGE, Plaintiff-Respondent, v. Sandra SEAL et al., Defendants-Appellants, Stokely-Van Camp, Inc., a corporation et al.,Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 354

154 N.W.2d 354

36 Wis.2d 661

Lawrence GAGE, Plaintiff-Respondent, v. Sandra SEAL et al., Defendants-Appellants Stokely-Van Camp, Inc., a corporation et al.,Defendants-Respondents.

Supreme Court of Wisconsin.

Nov. 28, 1967.

Rehearing Denied Jan. 30, 1968.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for appellants.

Bachman, Cummings & McIntyre, Appleton, for plaintiff-respondent.

Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for defendants-respondents.

HANLEY, Justice.

The appellant Sandra Seal contends that she is entitled to a new trial because it was prejudicial error not to give the requested instruction on the application of the emergency doctrine and, further, that a new trial should be granted because it was prejudicial error not to inform appellants' counsel that a signaling instruction earlier refused would be given and in submitting a special verdict to the jury in which issues of negligence, causation, and comparison appeared in single questions.

'The application of the emergency rule rests upon the psychological fact that the time which elapses between the creation of the danger and the impact is too short under the particular circumstances to allow an intelligent or deliberate choice of action in response to the realization of danger. * * *' ¹

'There are three basic requirements which must be met before the emergency doctrine can be applied. First, the party seeking the benefits of the emergency doctrine must be free from negligence which contributed to the creation of the emergency. Second, the time element in which action is required must be short enough to preclude deliberate and intelligent choice of action. Third, the element of negligence being inquired into must concern management and control before the emergency doctrine can apply. Unless a favorable finding on each of these elements is made, the emergency doctrine cannot be applied to a course of conduct which led to an automobile accident.' ²

The trial judge refused to give the emergency instruction because of his opinion that under the evidence in the case appellant Seal was not free of negligence. However, the trial court made no finding that appellant Seal was guilty of negligence as a matter of law. Without dispute appellant Seal's car was in the wrong lane at the time of the collision.

'There are two procedures which are used to apply the emergency doctrine. The court may apply the emergency doctrine as a matter of law, thereby absolving a party of all negligence in the action. The doctrine is generally applied as a matter of law when the time interval is so short that the reaction is practically instinctive or intuitive. However, the time element may not be so short as to constitute an emergency as a matter of law, yet it may be short enough to warrant a jury finding that an emergency existed. The Cook Case clearly contemplates that the application of the doctrine may be for the jury.

'The determination of whether a party's negligence was a factor in producing the emergency, thus barring the application of the emergency rule, is in many instances, also a jury issue. In Shaw v. Wuttke (1965), 28 Wis.2d 448, 453, 137 N.W.2d 649, 651, the court said:

"If there is a factual dispute as to such negligence and assuming the time element is so short as to make the doctrine otherwise applicable, a person is entitled to the emergency-doctrine instruction and it is for the jury to determine its application. (Case cited.) If, however, it can be held a person was negligent as a matter of law and such negligence contributed to the emergency, then such person is not entitled to the emergency-doctrine instruction." ³

The appellants contend there is credible evidence to support their theory that both rigs were entirely on the shoulder of the road and that Nicholas Grosskopf turned his rig from a point entirely on the eastbound shoulder to a point partially on the paved portion as the Seal vehicle was overtaking and about to pass, thus creating an emergency, excusting the persence of the Seal automobile in the left lane.

There is conflicting testimony regarding the position of Grosskopf's machine as it traveled along the highway. The driver of the rig behind his, James Dolan, testified that the Grosskopf rig was on the highway two feet or better from the center line. Grosskopf testified at one point that before the impact between the two automobiles he was driving his rig with about four or five feet on the surface of the road and with about three or four feet on the shoulder. He testified at another point as follows:

'Q Shortly before this impact took place isn't it true that your rig was partly on the shoulder and partly on the highway, but that most of it was on the shoulder?

'A I think it was about half--about half on and half off--maybe a little more.

'Q. Isn't it a fact that so far as the left side of your rig is concerned it was three or four feet on the hard surface and the rest was on the shoulder?

'A Yes, approximately that. Yes.'

'A Yes, approximately that. Yes.' representative of the Liberty Mutual Insurance Company, Stokely-Van Camp's insurer, that most of his rig was on the shoulder. Thus the general import of Grosskopf's testimony is that he was traveling partially on and partially off the highway.

Aloysius Schuh, who was supervising the moving of the crew of harvesting machines for Stokely-Van Camp, Inc., testified that Grosskopf's rig maintained a position about three feet from the center line, but prior statements of his placed the unit on the shoulder.

Stanley Seal, the husband of the appellant and a passenger in the Seal automobile, testified that the rig proceeded down the highway entirely on the shoulder. The appellant Sandra Seal has no recollection of the accident.

There is also a conflict in the testimony as to whether the Grosskopf rig deviated from a direct course of travel just prior to the accident. Grosskopf himself denied any deviation but admitted that his unit which he was pulling by a tractor, may have swayed or swerved, but to no great extent. Mr. Schuh testified that no deviation occurred. The plaintiff testified that the top of the unit was swaying violently but that he did not know if its wheels moved to the left. Mr. Seal testified that as they approached within 50 yards of the rig, it was entirely on the shoulder and that he then glanced at the speedometer, looked up again and saw that the harvesting unit was then from one to three feet onto the paved portion of the road. He testified his wife took evasive action immediately after he looked up. He also testified that the speed of their car was 45 miles per hour.

The only instruction given by the trial court concerning Sandra Seal's conduct was the following:

'In considering Question No. 1, inquiring about the fault of Sandra Seal, you are further instructed that a safety statute provides that on any roadway where traffic is permitted to move in both directions the operator of a vehicle shall not drive to the left of the centerline of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be done in safety. To comply with the statute the operator must, before he makes such movement, exercise reasonable...