Hansberry v. Dunn

• Decision Date: 07 March 1939
• Citation: 284 N.W. 556,230 Wis. 626
• Parties: HANSBERRY v. DUNN (four cases).
• Court: Wisconsin Supreme Court

230 Wis. 626

284 N.W. 556

HANSBERRY

v.DUNN (four cases).

Supreme Court of Wisconsin.

March 7, 1939.

Appeals from four judgments of the Circuit Court for Rock County; Jesse Earle, Judge.

Anna Hansberry v. Dunn and William Hansberry v. Dunn, affirmed.

Betty Hansberry v. Dunn, and William Hansberry et al. v. Dunn, modified and affirmed.

Four separate actions, three of them commenced on May 17, 1937, and the fourth on March 30, 1938, to recover damages for injuries sustained in an automobile collision. The first action was by Anna Hansberry, plaintiff, against Homer E. Dunn, defendant, to recover for personal injuries. The second was by William Hansberry, husband of Anna Hansberry, against Homer E. Dunn, defendant. In this action plaintiff sought recovery for medical and other expenses sustained by him as a result of injuries to his wife, Anna Hansberry, his daughter, Betty, for funeral expenses of his infant daughter Marilyn, who was instantly killed in the collision, and damages to his automobile. The third action was by Betty Hansberry, plaintiff, by William Hansberry, guardian ad litem, against Homer E. Dunn, defendant, to recover damages for personal injuries sustained in the collision. The fourth action was by William and Anna Hansberry against Homer E. Dunn, defendant, to recover damages for the negligent killing of their infant daughter, Marilyn. The actions were consolidated for purposes of trial, were tried to the court and a jury, and a special verdict rendered. The jury found defendant negligent with respect to speed, lookout, failure to yield one-half of the highway on meeting and passing the automobile driven by the plaintiff, and also with respect to management and control of his automobile. All of these items of negligence were found to have constituted causes of the collision. Plaintiff Anna Hansberry was found to have been causally negligent in precisely the same respects and no other. The negligence of defendant Dunn was assessed at 55% of the total negligence involved and that of plaintiff Anna Hansberry at 45%. The jury further found that neither plaintiff nor defendant at the time of collision was confronted with an emergency not brought on by negligence of theirs. The damages of plaintiff Anna Hansberry were fixed at $10,000; those of plaintiff Betty Hansberry at $500; those of William and Anna Hansberry arising from the death of their daughter Marilyn at $2,500. The damages of William Hansberry for medical care, funeral expenses, and damages to his automobile were assessed by the court as follows: Expenses for care of his wife, $1,381.85; medical care and expenses of his daughter Betty Hansberry, $120.85; funeral expenses for his daughter Marilyn, $88; damages to his automobile $750. Separate judgments were entered upon the verdict in favor of each plaintiff and against the defendant. Defendant appeals in each case. The material facts will be stated in the opinion.Alfred E. La France, of Racine (McGowan & Geffs, of Janesville, of counsel), for appellant.

Nolan, Dougherty, Grubb & Ryan, of Janesville, for respondent.

WICKHEM, Justice.

Plaintiff Anna Hansberry, the wife of William Hansberry, Sr., was a resident of Beloit. On March 30, 1937, at about one o'clock in the afternoon, plaintiff, accompanied by her aunt, Mrs. Dimmick, her son, William, and her daughters, Betty and Marilyn, drove from Beloit to Evansville to visit her sister. On their return trip to Beloit and when driving east on state highway 13 about seven miles from Beloit, there occurred at about 4:30 P. M. a collision between plaintiff's car and that of defendant. As a result of this collision, Marilyn, the infant child, was instantly killed, plaintiff Anna Hansberry and her daughter Betty were injured, and the car which plaintiff was driving was badly damaged. At the point of the accident state highway 13 was surfaced with concrete eighteen feet in width with a black line marking its center. As one proceeds east at or near the point of the accident there is a marked decline and the highway curves to the right. Going west and approaching the same point there is a corresponding incline and the highway curves to the left. Plaintiff's testimony is that as she approached the point where the accident occurred at a speed of from forty to fifty miles an hour, she noticed the oncoming car of defendant Dunn and that at this time it was on its proper side of the highway, but that when she next observed it it was on her side of the highway and that she turned left in an attempt to avoid a collision. As she turned left defendant turned sharply to his right side of the road, and the left front of defendant's car struck the side of plaintiff's car at a point near the hood and engine. Her testimony is corroborated by her son William, Jr., and by a disinterested witness. Dunn's testimony is that as he approached the place of the accident he was on his own or right side of the highway and that when he first observed the plaintiff's car coming down the decline and around the curve its left wheels were over the center line of the highway and upon his side of the pavement. Upon noticing this fact he claims to have turned his car slightly to the right; that plaintiff then turned her car to the right to get back to her side of the pavement and immediately thereafter swung her car to the left so that it was facing in a northwesterly direction, crosswise on the pavement with the front of the car on the north side of the pavement and the rear of the car on the south side of the pavement; that he swerved his car to the right but its left front crashed into the right front of the plaintiff's car. Certain marks on the north side of the highway are claimed by defendant to be identifiable respectively as proceeding from the right wheels of plaintiff's car and the left wheels of defendant's car. These marks are argued by defendant to confirm his testimony with respect to the course of the cars.

[1] Defendant's first contention is that the verdict of the jury convicting him of actionable negligence has no support in the evidence. This contention is applicable to each of the four appeals. It is claimed that the physical facts consisting of the marks upon the pavement indicate clearly that the testimony of plaintiff could not be true. One of the marks in question is apparently a tire mark which begins at about the center line somewhat east of the expansion joint at or near which the accident took place and curves to the north and west and thence south to the center line. The mark is almost entirely upon the north side of the highway, starting and ending at the center line but curving to the north. To the east and north of this mark is another mark extending in a northwesterly direction. Nearly all of this mark is to the north of the first mark. Witnesses for the defendant identified the first mark as that of the right rear wheel of the Hansberry car. The second mark was identified with the Dunn car. We see nothing in these marks that constitutes a corroboration by the physical facts of defendant's story and renders plaintiff's evidence incredible. It is perfectly possible consistently with plaintiff's story that her car was whirled around counterclockwise in such a way as to make this mark. This court has several times taken judicial notice of the fact that it is difficult to reconstruct movements of two vehicles which have come into collision under circumstances permitting further movement of the vehicles after the impact. We think that the jury was warranted in accepting plaintiff's story that defendant failed to keep a proper lookout; that he was proceeding at too high a rate of speed in view of the curve and the conditions of visibility created by it; that he was negligently travelling on the wrong side of the highway approaching the curve; that he failed to yield one-half of the highway when meeting plaintiff; and that the management and control of his automobile under the circumstances was negligent and careless. There being no contention by plaintiff that the findings of the jury with respect to her negligence are not sustained, we shall only consider her negligence as an incident to the disposition of defendant's next contention.

Defendant next contends that having found plaintiff guilty of the same acts of negligence of which they found defendant guilty, the negligence of each was at least equal as a matter of law, and that the jury's finding that defendant was more negligent than plaintiff should not be allowed to stand. Defendant relies upon statements in McGuiggan v. Hiller Bros., 209 Wis. 402, 245 N.W. 97, 99, to the effect that cases in which a court can say as a matter of law that the negligence of plaintiff is equal to or greater than that of defendant “will ordinarily be limited to cases where the negligence of each is of precisely the same kind and character,” and Brown v. Haertel, 210 Wis. 345, 244 N.W. 630, 632, to the effect that, “If the negligence of each [consisted] simply in a failure to look, and they both had ample opportunity to discover each other, it might be that their negligence would have to be held equal.”

Defendant takes the position that when the jury finds negligence in the same respect on the part of each party, it should not be permitted to weigh and compare the negligence further; that, for example, if the two parties are each found negligent as to lookout, the court must hold as a matter of law that the negligence is equal and not permit the jury to speculate whether one was more negligent in respect to lookout than the other. If any other rule is adopted, defendant contends that it will result in sustaining verdicts based upon speculation or guess. The case of Schmidt v. Leary, 213 Wis. 587, 252 N.W. 151, 153, is squarely against defendant's contention, and he asserts that this case should be overruled. In that case the jury found both plaintiff and defendant...