Jacobson v. Bryan

• Decision Date: 18 January 1944
• Citation: 244 Wis. 359,12 N.W.2d 789
• Parties: JACOBSON v. BRYAN et al.
• Court: Wisconsin Supreme Court

244 Wis. 359

12 N.W.2d 789

JACOBSON

v.BRYAN et al.

Supreme Court of Wisconsin.

Jan. 18, 1944.

Appeal from a judgment of the Circuit Court for La Crosse County; R. S. Cowie, Judge.

Affirmed.

Action at law by Gerold Jacobson against Winthrop Bryan and another.From a judgment for the plaintiff entered June 28, 1943, the defendants appeal.The evidence so far as material to the decision is stated in the opinion.

FAIRCHILD, J., dissenting.

Hale & Skemp, of La Crosse, for appellants.

Gordon, Law, Brody & Johns, of La Crosse, for respondent.

FOWLER, Justice.

The plaintiff sustained injuries in a collision on the highway between an empty milk truck he was driving and a truck driven by Winthrop Bryan loaded with crushed limestone, which he claims were proximately caused by the negligent driving of Bryan and sues Bryan and his insurer to recover damages therefor.There was a jury trial.The jury by special verdict found Bryan causally negligent in respect of lookout, speed and position on the highway and management and control, and acquitted the plaintiff of contributory negligence.Judgment was entered for the damages as assessed by the jury.The defendants appeal.

The defendants claim that none of the findings of the jury is supported by the evidence.We consider that all are so supported.When the only question involved is whether the evidence supports findings and we consider that it does we do not ordinarily file an opinion.Were this the only question involved we would not file one in this case.

The defendants also claim that the court erred in receiving in evidence over objection of defendants the report of a traffic officer who came to the place of collision a short time after the collision occurred.The report was a printed form on a large card which the officer filled in by making check marks in squares after the items on the card.One item on the card covered “manner of collision.”Under this heading were items numbered 1 to 5.The fifth item was “Sideswipe” and the square after this item bore the officer's check mark.The other items were “1.Angle Collision.2.Head on.3.Rear end.4.Backed into other vehicle.”The only thing on the card which the defendants claim was prejudicial was the item “Sideswipe.”

The trial court held that it was the officer's duty to make and file the report; that his experience in viewing situations after collisions made him an expert; and that because of these matters the card was admissible in evidence.The officer was no better qualified to draw conclusions from what he saw after the collision than any person of ordinary intelligence and therefore was not an expert.And if he were an expert and qualified to give an opinion as to whether the collision was a “sideswipe” or an “angle collision” his report would not be admissible in evidence, but to make his opinion admissible he would have to give it on the witness stand under oath.But assuming that the card was not receivable in evidence, the admission of it does not require reversal of the judgment unless it appears to us from the record that the admission of it was prejudicial.

Sec. 274.37, Stats., admonishes and directs us as to our duty under the instant situation.So far as here material it reads as follows: “No judgment shall be reversed * * * or a new trial granted in any action * * * on the ground of * * * the improper admission of evidence * * * unless in the opinion of the court to which the application is made, after an examination of the entire action * * * it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse * * * the judgment, or to secure a new trial.”

We cannot say that it appears from the record before us that the admission of the report affected the defendants' “substantial rights.”If we assume, as defendants' counsel contends, that the evidence shows or warrants the inference that the collision was an “angle collision” rather than a “sideswipe,” this would not necessarily or presumptively show that the admission of the card affected any “substantial rights” of the defendants.That it did affect his substantial rights must affirmatively appear from all the evidence bearing upon the point, and we are constrained to hold that this does not so appear.It rather appears to us that if the jury accepted the card as proof that the collision was a “sideswipe” this inference may have been to the advantage of the defendants rather than to the plaintiff.For if the collision was a “sideswipe” it was not an “angle collision”; and if it was not an “angle collision” this would tend to defeat plaintiff's claim that the collision was caused by the defendant's turning left to pass ahead of the truck instead of keeping right or turning further right to avoid a collision.True, it may have been to the plaintiff's advantage as tending to show that the plaintiff had entirely crossed the near half and was wholly on the far half of the state road as the plaintiff claimed.But whether it operated to the advantage of the one party or the other is wholly speculative and we cannot say it was prejudicial to the defendant.

The accompanying plat drawn an inch to 20 feet scale makes the entire situation clearer than we can make it by a mere statement.¹It is undisputed that the plaintiffwas driving south on the county road which was graveled to a width of 18 feet.The defendant Bryan was driving westerly on the state road which was surfaced with black top to a width of 32 feet.The plaintiff turned left at the intersection.The collision occurred on the state road.It was broad daylight, the weather was clear and the roads dry.The angle of the intersection towards the northeast is seventy degrees.From the evidence the jury might properly infer facts as stated following: The point of impact was indicated by a gouge mark 16 feet long made by the frame of defendants' truck, which collapsed at the junction of the cab with the gravel box, the front end of the box falling to the ground and the rear supported by the standing rear wheels.The easterly end of the gouge was 16 feet 6 inches from the extended line of the east right of way line of the county road, and 65 feet easterly from the extended line of the graveled part of that road.The trucks came to rest at the extreme south side of the black top with their front ends together at some mail boxes outside the black top, the defendants' truck facing south and the plaintiff's tipped on its side beside the defendants'.The gouge was south of the center of the state road.The plaintiff's counsel claimed that the plaintiff's truck was wholly south of the center of the state road when the collision occurred.Defendants' counsel claimed that his truck was north of the center of the state road as he approached the point of collision and the plaintiff's truck was across his path.The defendant driver was then going 35 miles per hour, perhaps much faster as the crushed stone was thrown over the cab and the plaintiff's truck and scattered along the black top for 63 feet.The plaintiff was shifting into second gear going 10 miles per hour.The plaintiff had stopped at the intersection before turning and looked to his left for traffic.There were shrubs at the northeast corner of the intersection that obstructed the view.From where he stopped he saw to his left 150 to 200 feet up the state road and the defendants' truck was not visible.The defendant driver had an unobstructed view of the state road from a hill top 300 feet easterly from the intersection.He did not see plaintiff's truck until 25 or 30 feet from it.

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We are of the opinion that the facts being as above stated, as the jury might properly find them, the facts sustain our conclusions that the findings of the jury are supported by the evidence and that the admission of the officer's report was not prejudicial.

The above is sufficient to require affirmance of the judgment, but as we affirmed the learned trial judge in refusing to admit in evidence a traffic officer's report in the case of Reynolds v. Wargus (New Amsterdam Ins. Co.), 240 Wis. 94, 2 N.W.2d 842, and did so without discussing the question of its admissibility, and in view of the fact that other trial judges may be of diverse opinions as to the admissibility of such reports, we consider it advisable to decide whether the card was admissible either as a whole or in part.

The objection to the receipt of the card was general.No special objection was made to the receipt of the item relating to “manner of collision” on the ground that the item gave the opinion of the officer or gave his conclusion as to a fact to be decided by the jury.When part of a written statement is receivable in evidence and part not, to exclude the part not receivable special objection must be made to the inclusion of the part not receivable and the grounds for its exclusion given or the receipt of the statement as a whole is not erroneous.We consider that under that rule the receipt of the card in evidence was not improper.As to the necessity of making special objection seeVol. 1, Wigmore, Evidence, 3d Ed., sec. 18, p. 332 et seq.;Maxcy v. Peavy Publishing Co., 178 Wis. 401, 406, 190 N.W. 84.

On hearing of the motions after verdict the trial judge ruled the card receivable in evidence (1) because it was...