Goldenberg v. Daane
| Decision Date | 07 March 1961 |
| Citation | 108 N.W.2d 187,13 Wis.2d 98 |
| Parties | Samuel GOLDENBERG, Respondent, v. Lester DAANE et al., Appellants. Robert S. WEBER, Respondent, v. Lester DAANE et al., Appellants. |
| Court | Wisconsin Supreme Court |
Schanen, Schanen & Pauly, Port Washington, Erwin N. Pauly, Walter J. Swietlik, Port Wahington, of counsel, for appellant.
Goldenberg & McKay, Milwaukee, Samuel Goldenberg, Milwaukee, of counsel, for respondent.
1. Sufficiency of the form of the order. 'No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein.' 1
The order in this case does not set forth reasons, but does recite the filing of a written decision 'wherein the Court sets forth its reasons for its decision that the motions of the plaintiffs for new trial in the interest of justice must be granted.'
, * * *' 2
In the decision just quoted, we held the following reference insufficient:
'The court having rendered its written decision on motions after verdict directing that there be a new trial in the interest of justice.'
In the order now before us, there is specific reference to the reasons set forth in the decision, and we consider this form sufficient compliance with the statute.
2. The issue. The record makes it perfectly clear that Daane got onto the wrong side of the highway as a result of loss of control. It is almost as clear that this loss of control was precipitated by his striking the concrete divider with his left front wheel. There is testimony that the collision with the divider was, itself, the result of unexplained skidding. Defendant's counsel claims that the loss of control did not result from negligence, but resulted from the type of skidding, of which it has been said 'that skidding may occur without fault, and that the mere fact of its occurrence will not support a finding or inference of negligence.' 3
There was testimony that road and weather conditions were consistent with such skidding, although the jury could consider that although the vehicle was short, it weighed four tons, and had dual rear wheels. Daane's description of events was somewhat ambiguous, and his testimony was to be interpreted by the jury. 4 He testified that the road was slippery, and that the tractor 'started to skid, being short.' Referring to the unidentified car preceding him, he said:
'This car was going north, and my tractor was sort of skidded and I tried to get away from him and by that I hit the curb as much as I know.'
He said that the tractor skidded 'maybe 10 feet' before the left front wheel hit the divider. It 'sort of moved to the west.' At another point he said:
He testified the divider was covered with snow and not visible, but that he knew it was there. On cross-examination, he testified as follows:
'Q. A few moments ago, Mr. Daane, you testified that as you were proceeding into this inside lane next to the divider that you got over too far. You made that testimony, did you not? A. Yes.
'Q. And having gotten over too far, it is a fact that your truck then lifted and went over the divider, isn't that right? A. It went into a skid at that time.
He admitted that on adverse examination, he had given the following testimony:
'Q. You couldn't go to the east because there was another car in that path, isn't that correct? A. That's right. I didn't want to go that way, you know.
A traffic officer noticed skid marks in the snow, and described them as follows:
The skid marks were approximately 50 feet, or a little more. The officer testified that he heard Goldenberg ask Daane if Daane had been passing a car, and Daane said 'Yes.'
We are of the opinion that the evidence presented a question for the jury as to whether Daane's loss of control was due to non-negligent skidding, or was due to negligently striking the concrete divider while attempting to pass the unidentified car.
3. The reasons assigned by the court. The circuit court concluded that the evidence established Daane's negligence with respect to management and control as a matter of law, and that the only jury question was the question of cause. In our view, however, as indicated above, there was an issue of fact whether Daane was negligent. If a jury found him negligent, we would find it difficult to sustain a jury finding that such negligence did not cause the collision. It would have been a sufficient reason for ordering a new trial if the court had asserted that the finding of no negligence was against the great weight of the evidence. 5 While we find erroneous the circuit court's conclusion that...
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