Gervais v. Kostin, s. 181

• Decision Date: 06 October 1970
• Docket Number: 182,Nos. 181,s. 181
• Citation: 48 Wis.2d 190,179 N.W.2d 828
• Parties: George GERVAIS, Plaintiff-Respondent, v. Alexander A. KOSTIN et al., Defendants-Appellants, Wayne J. Olsen, Third Party Defendant-Respondent. Wayne J. OLSEN, Respondent, v. Alexander A. KOSTIN et al., Appellants.
• Court: Wisconsin Supreme Court

Page 828

179 N.W.2d 828

48 Wis.2d 190

George GERVAIS, Plaintiff-Respondent, v. Alexander A. KOSTIN et al., Defendants-Appellants, Wayne J. Olsen, Third Party Defendant-Respondent.

Wayne J. OLSEN, Respondent, v. Alexander A. KOSTIN et al., Appellants.

Nos. 181, 182.

Supreme Court of Wisconsin.

Oct. 6, 1970.

Actions by plaintiffs George Gervais and Wayne J. Olsen against defendants Alexander A. Kostin and Allstate Insurance Company to recover damages for personal injuries sustained as a result of a collision between a motorcycle and an automobile. The two cases were consolidated for trial.

The accident giving rise to these actions occurred June 22, 1966, at about 3 p.m., at the intersection of Highways 31 and 158 in Kenosha county. The approaches to this intersection are level, unobstructed, and controlled by traffic lights.

Defendant Kostin was operating his automobile in a northerly direction on Highway 31. Plaintiffs Olsen and Gervais were traveling in a southerly direction on a motorcycle on Highway 31.

Gervais had just purchased the cycle, and Olsen had asked Gervais to take him for a ride. They left the Gervais residence with Gervais driving, but at some time prior to the accident, the riders, at Olsen's suggestion, switched positions so that Olsen could 'see how she handles.'

Gervais and Olsen were southbound on Highway 31, making a left turn to go east on Highway 158. They were followed, not far behind, by another cyclist, Philip Budzenski, who was intending to turn right from Highway 31 and head west on Highway 158.

As the Kostin car approached the intersection, it was the third car in a line of several automobiles moving north, single file on Highway 31. The first car in this line was already stopped at the light which was green and was awaiting an opportunity to turn left from Highway 31 and head west on Highway 158. At approximately 150 feet before the intersection, Highway 31 widens into two lanes for both north and southbound traffic.

As Olsen faced the northbound traffic on Highway 31, he saw the lead car in the left (west) lane stopped, waiting to turn left. There were no cars in the right (east) lane. Olsen had a green light and began to turn left across the path of these two lanes.

At this moment Budzenski who had pulled almost abreast of Olsen noticed that the light was about to turn yellow and shouted, 'You can't make it.' Olsen testified that he never heard this warning.

At almost the same moment that Olsen started his turn, Kostin swung out from behind two cars in front of him as they were stopped waiting to turn. Kostin proceeded through the intersection.

Olsen testified that he first saw the Kostin car when he heard a horn blowing, tires screeching and a white flash which was a car coming at him.

Defendant Kostin testified that his car had just passed the intersection, and the motorcycle appeared out of nowhere, that when he first saw the motorcycle it was right at the front of his car.

The testimony disclosed that the point of impact was in the intersection, east of the center line of Highway 31 and north of the center line of Highway 158, and that the defendant's car left skid marks of 90 feet.

The action was tried to a court and jury. A special verdict was returned by the jury, whereby both Olsen and Kostin were found causally negligent. The aggregate negligence was apportioned 85 percent to Kostin and 15 percent to Olsen.

Plaintiff Gervais was awarded $100,000 for personal injuries and $15,100 for loss of earnings. The damages awarded to plaintiff Olsen were $2,500 for personal injuries and $400 for loss of earnings.

Judgment was entered August 26, 1969, in favor of George Gervais for the recovery of $124,977.58 in Case No. 181, and judgment, in Case No. 182, in favor of Wayne J. Olsen for the recovery of $2,747.44, was entered on August 29, 1969.

From the respective judgments the defendants appeal.

Heide, Sheldon, Hartley, Thom & Wilk, Kenosha, for appellants.

Phillips, Richards & Mayew, Kenosha, for respondent.

HANLEY, Justice.

The issues presented on this appeal are:

(1) Was Gervais, not Olsen, the driver at the time of the accident;

(2) Did the trial court commit prejudicial error in restricting the use of the deposition of the respondent Olsen;

(3) Was the negligence of the respondent Olsen, as a matter of law, greater than the negligence of the appellant Kostin;

(4) Was the negligence of the respondent Olsen imputed as a matter of law to the respondent Gervais; and

(5) Were the damages awarded to Gervais excessive?

Operator of Motorcycle.

Both Gervais and Olsen testified that at the time of the collision Olsen was the operator and Gervais was the passenger. Appellants' contention to the contrary is based solely on two statements--one from Olsen and one from Gervais taken by Doctor Peterson at the hospital shortly after the accident. According to Doctor Peterson he received the following history from Gervais:

'About 3 PM June 22, 1966, this patient was the driver of an automobile with Wayne Olson as a passenger apparently heading south on Highway 31 about to turn left on 52nd street going toward Kenosha when there was some kind of a collision with an automobile headed North on Highway 31. Details are not clear as to exactly what happened. The patient came in with very marked trauma to the right lower extremity which had already been splinted by the Police. They informed me that the leg was almost torn off.

'* * *

'He was married at the age of 17 and had 3 children.'

This history contained three significant contradictions from the factual situation: Gervais was married at age nineteen, not seventeen; he has five children, not three; and he was injured on a motorcycle, not in an automobile.

At the trial, Doctor Peterson testified that these errors 'would suggest that the patient had had a sufficiently substantial head injury so that it would throw in doubt what he had told me about the whole situation.'

In referring to this statement by Doctor Peterson, the appellants contend there is nothing to support the 'head injury' conclusion. They also contend the trial court erred when it assumed Gervais had a skull fracture. The record contains abundant evidence of a head injury.

Witness Budzenski who saw Gervais fly into the air stated:

'When he first landed face first, it's just like somebody threw a tomato on the ground. * * *'

There was also medical testimony by Doctor Sattler who testified:

'* * * Again the record shows that X-rays of the skull revealed a linear fracture occiput. * * *' Thus the testimony of three witnesses--Budzenski and Doctors Peterson and Sattler--all point to a head injury afflicting Gervais when a history was taken by Doctor Peterson at the hospital.

The fact that Gervais was a passenger and Olsen the driver is further substantiated by the testimony of Budzenski when he identified Gervais as the person who flew off the 'rear' seat came down on his head.

The appellants introduced a second prior inconsistent statement, this one by Olsen, wherein he is alleged to have told Doctor Sattler that he (Olsen) was a passenger. Olsen denied making this statement at the time of trial. He also denied making it prior to trial when he was adversely examined.

Appellants argue that this statement was entitled to a great deal more weight than the jury apparently gave to it and that it should have been received as substantive evidence of the truth of the statements contained therein, as opposed to being received merely as a prior inconsistent statement available for impeachment purposes only. In support of this argument appellants cite Gelhaar v. State (1969), 41 Wis.2d 230, 241, 163 N.W.2d 609.

We think the Olsen statement was not entitled to substantive weight because it fails to satisfy any of the preconditions set forth in Gelhaar, supra. In the instant case the statement was not written nor signed by Olsen; it was not in a judicial or official hearing; and the declarant did not acknowledge the making of the statement in the present proceeding. In fact, the record shows that Olsen denied ever stating to Doctor Peterson that he was the driver.

Moreover, even if the statement were of substantive merit, this court has held that:

'* * * Where the conflict or contradiction arises by reason of an earlier statement given by the witness, it is for the jury to determine the question of the weight and credence to be given the witness-stand testimony and prior extra-judicial statement. * * * ' Ianni v. Grain Dealers Mut. Ins. Co. (1969), 42 Wis.2d 354, 360, 166 N.W.2d 148, 151.

The question as to who was the driver of the motorcycle is clearly a question of fact for the jury. There was ample credible evidence for the jury to conclude that Olsen was the driver.

Restriction of the Use of Olsen Deposition.

Appellants' second contention is that the trial court erroneously restricted the use of an adverse examination of Olsen taken in Rhode Island.

The record is not clear as to whether or not service had been made on Olsen prior to January 30, 1969, the date of the taking of the adverse examination.

However, assuming there was proper service, we are satisfied that any error was eliminated when the appellants had the opportunity to examine Olsen at length at the trial. This issue involved the question of who was driving the motorcycle.

We have already concluded that there was ample credible evidence to support the jury's conclusion on that issue.

Comparative Negligence.

The appellants contend that as a matter of law the negligence of the driver of the left-turning vehicle exceeded that of Kostin. Here the jury was entitled to believe the negligence of Kostin was the principal cause of this accident. By his own admission, he knowingly approached a congested intersection without reduction of speed as required by sec. 346.57(3), Stats. This act was...