Grutzner v. Kruse, 77-604

• Decision Date: 22 November 1978
• Docket Number: No. 77-604,77-604
• Citation: 87 Wis.2d 38,273 N.W.2d 373
• Parties: Edward GRUTZNER, Personal Representative to the Estate of Roland W. Klevene, Sr., Deceased, Plaintiff-Respondent, v. Ronald M. KRUSE, Manchester Insurance and Indemnity Co., a Foreign Corporation, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 373

273 N.W.2d 373

87 Wis.2d 38

Edward GRUTZNER, Personal Representative to the Estate of Roland W. Klevene, Sr., Deceased, Plaintiff-Respondent, v. Ronald M. KRUSE, Manchester Insurance and Indemnity Co., a Foreign Corporation, Defendants-Appellants.

No. 77-604.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 18, 1978.

Opinion Released Nov. 22, 1978.

Opinion Filed Nov. 22, 1978.

Grutzner, Byron & Holland, S. C., Beloit, submitted brief for plaintiff-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

DYKMAN, Judge.

An automobile-pedestrian accident occurred near the intersection of North Third Avenue and West Grand Avenue in Wisconsin Rapids. Both streets are four lanes wide. Appellant Ronald M. Kruse was driving north on North Third Avenue and stopped at the traffic light at the intersection of West Grand Avenue. He was in the inside lane of the two northbound lanes and intended to make a left turn into West Grand Avenue. When the light turned green, he proceeded into the intersection where he allowed an oncoming vehicle to go by, then turned left into the inside lane of the two westbound lanes of West Grand Avenue. Roland Klevene, Sr., a pedestrian, was crossing West Grand Avenue from north to south. He was struck by the Kruse vehicle, which had accelerated to about ten miles per hour and the resulting injuries caused his death. There was conflicting evidence as to whether Klevene was in the crosswalk when he was struck. Klevene's personal representative Edward Grutzner commenced this action.

The jury found both Kruse and Klevene causally negligent, and apportioned forty percent of the negligence to Kruse and sixty percent to Klevene.

On motions after verdict, the trial court granted the personal representative's motion to modify the jury's answers, and apportioned fifty percent of the negligence to Kruse and fifty percent to Klevene. Grutzner had also moved for a new trial on the basis that the verdict was contrary to the weight of the evidence, and alternatively, in the interest of justice. The trial court did not rule on the motion for a new trial. Judgment was entered upon the verdict as modified. Kruse appeals.

The standard of review is "(whether) there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings. The evidence is to be viewed in the light most favorable to the verdict." May v. Skelley Oil Co., 83 Wis.2d 30, 35, 264 N.W.2d 574, 576 (1978).

Klevene was lying on the pavement fifty-six feet west of the crosswalk after the accident. A policeman who investigated the accident found no marks on the car that would indicate a blow sufficient to propel or carry Klevene fifty-six feet. A witness testified that he observed the Kruse car make a "normal turn," and after the rear of the car was west of the crosswalk, "I seen the brake lights; and then I looked in the air above the car; and there was a body or person above the car, I would say maybe four or five feet above the top of the car in the air." Kruse testified that Klevene was west of the crosswalk when the car collided with Klevene. This evidence was credible and permitted an inference supporting a finding that Klevene was outside the crosswalk and therefore negligent in failing to yield the right of way to Kruse.

Credible evidence reasonably admitting of an inference supporting the jury's finding that Kruse was negligent also exists. Although Kruse testified that he was traveling ten miles per hour, and there was nothing in the record that showed anything but a traffic-free street in front of him, he failed to see Klevene, who had walked from the north curb of West Grand Avenue fourteen feet south into Kruse's path. Looking and not seeing what is in plain sight is as negligent with respect to lookout as not looking at all. Lake to Lake Dairy Co-operative v. Andrews, 264 Wis. 170, 173, 58 N.W.2d 685 (1953).

If there is credible evidence which supports a jury's verdict, the action of a trial court in changing a jury's verdict on the ground that it must be changed as a matter of law will be set aside on appeal. Smith v. Flash City Transit Co., 66 Wis.2d 595, 600, 225 N.W.2d 481 (1975). We cannot say that the jury's finding that a jaywalking pedestrian was more negligent than a motorist turning at ten miles per hour is based on speculation. The judgment as modified by the court is therefore reversed.

Respondent contends that if the jury's verdict is reinstated we should order a new trial either because the verdict is contrary to the weight of the evidence or in the interest of justice. It was error for the trial court not to rule on respondent's motion for a new trial. A trial judge's review of the evidence is relatively contemporaneous with the trial. Unlike a reviewing court, which must rely on a transcript and exhibits, the trial judge is able to view the demeanor of the witnesses and to gain an impression of the evidence as a whole. Section 805.15(4), Stats., requires the trial court to rule on motions for a new trial even if it grants a motion to change the...