Jacobs v. Stack, 339

Decision Date04 June 1974
Docket NumberNo. 339,339
Citation63 Wis.2d 672,218 N.W.2d 364
PartiesJohn S. JACOBS et al., Appellants, v. Edward STACK et al., Respondents.
CourtWisconsin Supreme Court

Marcovich & Cochrane, Superior, for appellants.

Davis, Witkin, Foley & Weiby, Superior, for respondents.

HEFFERNAN, Justice.

The trial judge properly applied the rule that, in reviewing a jury's verdict, the test to be applied is 'whether there was any credible evidence which supported the jury's answer.' Home Savings Bank v. Gertenbach (1955), 270 Wis. 386, 392, 71 N.W.2d 347, 350, 72 N.W.2d 697, 700.

The trial judge's memorandum opinion demonstrated that he followed the admonitions of this court in respect to the granting of the directed verdict.

'A verdict shoud only be directed against a plaintiff where plaintiff's evidence, giving it the most favorable construction it will reasonably bear, is insufficient to sustain a verdict in plaintiff's favor.' Davis v. Skille (1961), 12 Wis.2d 482, 484, 107 N.W.2d 458, 459.

The trial judge also correctly applied the rule to be used on the review of a jury's apportionment of negligence.

However, if our review of the verdict, giving to the facts the most favorable construction they will bear, fails to show that there is any credible evidence of any negligence on the part of the defendant, it is unnecessary to indulge in a review of the jury's apportionment. Since the negligence of the plaintiff for failure to yield the right of way is conceded, a finding that there is no credible evidence to support the jury's finding that Stack was negligent must result in an apportionment of 100 percent of the negligence to Joan Jacobs. We find that to be the outcome of our analysis.

Stack was found negligent as to speed. This finding is unsupported. Joan Jacobs formed no estimate of his speed until he was only two or three feet away, and then she said only that he was going 'pretty fast.' That term is vague and has no probative value. At the time of her conclusion Joan Jacobs was directly in front of the Stack truck and was in no position to form a credible estimate of speed. The observation under the circumstances is not probative of any finding that Stack was exceeding the 25 mile an hour speed limit. See Ronning v. State (1924), 184 Wis. 651, 658, 200 N.W. 394; Gerbing v. McDonald (1930), 201 Wis. 214, 219, 229 N.W. 860, for discussion of the circumstances in which such vague descriptions of speed may be probative.

Testimony of Officer Nolan also was introduced, purportedly in respect to speed. He was not at the scene of the accident but was there shortly thereafter and estimated that the Stack vehicle left skidmarks of 32 feet. He was unable to say definitely that the skidmarks of the front and rear tires did not overlap. If they did, his estimate was an overstatement of the length of the skidmarks by the distance between the front and rear tires. Even were there no overlap, the skidmarks are not probative of an excessive rate of speed. The police officer relied upon the table of stopping distances appearing in the 'Manual for Motorists.' Fischer v, Fischer (1966), 31 Wis.2d 293, 308 fn. 1, 142 N.W.2d 857. On the basis of those tables, he concluded that the speed at the time the brakes were applied was 29 miles per hour. He did not qualify as an expert witness, and his opinion was based solely on the skidmark tables. Those tables show, however, that at a speed...

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4 cases
  • Chart v. General Motors Corp.
    • United States
    • Wisconsin Supreme Court
    • October 4, 1977
    ...which supported the jury's verdict. Herro v. Dept. of Natural Resources, 67 Wis.2d 407, 414, 227 N.W.2d 456 (1975); Jacobs v. Stack, 63 Wis.2d 672, 676, 218 N.W.2d 364 (1974). As stated in Weeden v. Beloit, 29 Wis.2d 662, 139 N.W.2d 616 (1966): "In reviewing a jury verdict this court need o......
  • State v. Hanson
    • United States
    • Wisconsin Supreme Court
    • October 3, 1978
    ...is credible evidence which under any reasonable view fairly admits of an inference which supports the verdict. Jacobs v. Stack, 63 Wis.2d 672, 676, 218 N.W.2d 364 (1974). Since we have found the defense testimony not to be incredible as a matter of law, the trial court's finding of not guil......
  • Bastman v. Stettin Mut. Ins. Co. of Marathon County
    • United States
    • Wisconsin Supreme Court
    • December 4, 1979
    ...court nor this Court should change that finding. Rodenkirch v. Johnson, 9 Wis.2d 245, 248, 101 N.W.2d 83 (1960); Jacobs v. Stack, 63 Wis.2d 672, 676, 218 N.W.2d 364 (1974). This requires that the evidence be viewed in the light most favorable to support the verdict. St. Paul Fire & Marine I......
  • Harris v. Kelly, 156
    • United States
    • Wisconsin Supreme Court
    • June 4, 1974

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