Hibner v. Lindauer
| Decision Date | 08 January 1963 |
| Citation | 18 Wis.2d 451,118 N.W.2d 873 |
| Parties | George H. HIBNER, Plaintiff-Respondent, v. Walter M. LINDAUER et al., Defendants-Respondents, Robert J. Omernik et al., Appellants. |
| Court | Wisconsin Supreme Court |
Rieser, Stafford, Rosenbaum & Rieser, Willard S. Stafford and John A. Hansen, Madison, for appellants.
Immell, Herro, Buehner & DeWitt, Madison, for plaintiff-respondent.
The jury found Mr. Omernik and Mr. Helgesen each five per cent causally negligent. Upon their appeal, such findings must be examined from the standpoint most favorable to the plaintiff. Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 248, 101 N.W.2d 83; Heckel v. Standard Gateway Theater (1938), 229 Wis. 80, 82 281 N.W. 640. If there is credible evidence to support the jury's answers, such answers must stand. Wintersberger v. Pioneer Iron & Metal Co. (1959), 6 Wis.2d 69, 73, 94 N.W.2d 136. In Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 109, 62 N.W.2d 549, 551, 63 N.W.2d 740, this court said:
'It is the well recognized rule that when a jury's findings are attacked, particularly when they have had the trial court's approval, our inquiry is limited to the issue whether there is any credible evidence that, under any reasonable view, supports such findings.'
Mr. Udell, a disinterested witness, testified that the Omernik and Helgesen cars were following at a distance of three-quarters of a car length to a car length and a half just before the accident. If Mr. Udell's testimony is credible, his testimony alone would support the jury's conclusions as to traveling too close at 25 miles per hour. An effort was made to impeach Mr. Udell's testimony by offering a statement given by him previous to the trial in which he had stated that he could not say how close the cars were at the time of the accident because he 'couldn't see.' It is noted that in the earlier statement he was discussing the distances at the precise moment of impact, whereas in his later testimony he was depicting the distances shortly before the collision.
In our opinion, such conflict as may exist in Mr. Udell's testimony presented an issue for the jury and may have influenced the weight which would be given to his testimony. Musha v. United States Fidelity & Guaranty Co. (1960), 10 Wis.2d 176, 181, 102 N.W.2d 243. A lack of complete consistency in Mr. Udell's remarks would not necessarily obliterate their probative worth. His testimony, if believed, contained by itself a minimum of evidence to sustain the verdict.
The quality of Mr. Udell's observation has also been challenged because he made it through his rear-view mirror at a time when conditions of darkness prevailed. In our opinion, this was another factual consideration which may have influenced the weight to be given his testimony by the trier of fact. In La Vallie v. General Ins. Co. of America (1962), 17 Wis.2d 522, 117 N.W.2d 703, a driver struck a bump in the road and then made an observation through his rear-view mirror as to the location of an approaching car. At [18 Wis.2d 455] page 527, at page 705 of 117 N.W.2d of the La Vallie Case we said that while the 'observation to the rear was only a glance, the jury was entitled to accept his testimony in this regard as a verity.' We recognize the weakness of this testimony, but we are not inclined to declare it wholly incredible.
The jury apparently chose to believe the testimony of Mr. Udell concerning the closeness of the appellants' vehicles. We are unable to reject such testimony as a matter of law.
The appellants also contend that the skidmarks of the Helgesen car demonstrate that Helgesen was traveling more than two car lengths to the rear of the Omernik car. Exhibit 17 shows skidmarks to the rear of the Helgesen car, but there is no testimony as to the length of such skidmarks. The appearance of the skidmarks on the photograph is not so clear that this court, without the benefit of supporting testimony, can determine therefrom the distance that the Helgesen car was traveling behind the Omernik car. For example, there is a break in the continuity of the skidmark leading to the left wheel; also, the skidmark which leads in the direction of the right wheel stops far short of the right...
To continue reading
Request your trial
-
Burlison v. Janssen
...is peculiarly for the jury. Baker v. Northwestern Nat. Casualty Co. (1963), 22 Wis.2d 77, 86, 125 N.W.2d 370; Hibner v. Lindauer (1963), 18 Wis.2d 451, 455, 118 N.W.2d 873; Anderson v. Deerwester (1960), 9 Wis.2d 428, 435, 101 N.W.2d Sec. 346.34(1), Stats., 2 requires that a proper turn sig......
-
Wirsing v. Krzeminski, 264
...(1965), 28 Wis.2d 412, 417, 137 N.W.2d 101, cert den. (1966), 383 U.S. 916, 86 S.Ct. 910, 15 L.Ed.2d 671, and Hibner v. Lindauer (1963), 18 Wis.2d 451, 454, 118 N.W.2d 873. The inconsistent testimony of the defendant gives rise to another claim of error. Counsel for the plaintiff in cross e......
-
Leckwee v. Gibson, 76-560
...trial court's approval. Olson v. Milwaukee Automobile Ins. Co., 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740 (1954); Hibner v. Lindauer, 18 Wis.2d 451, 118 N.W.2d 873 (1963). The factual issues were submitted to the jury on an ultimate fact verdict which inquired whether the party named was n......
-
Cheetham v. Piggly Wiggly Madison Co.
...trial court's approval. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740; Hibner v. Lindauer (1963), 18 Wis.2d 451, 118 N.W.2d 873. Here plaintiff and her husband walked from their car to the store without incident. Plaintiff's husband returned safel......