Jacobson v. Greyhound Corp.

• Decision Date: 30 November 1965
• Citation: 29 Wis.2d 55,138 N.W.2d 133
• Parties: Frederick O. JACOBSON, Admr. de bonis non with Will Annexed of the Estate of Thomas F. Fleming, decd., Plaintiff, v. GREYHOUND CORPORATION, Defendant-Appellant, Earl Knight et al., Defendants, Clark County et al., Interpleaded Defendants-Respondents. Ralph O. ALLEN, Plaintiff, v. GREYHOUND CORPORATION, Defendant-Appellant, Earl Knight et al., Defendants, Clark County et al., Interpleaded Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 133

138 N.W.2d 133

29 Wis.2d 55

Frederick O. JACOBSON, Admr. de bonis non with Will Annexed

of the Estate of Thomas F. Fleming, decd., Plaintiff, v. GREYHOUND CORPORATION, Defendant-Appellant, Earl Knight et al., Defendants, Clark County et al., Interpleaded Defendants-Respondents.

Ralph O. ALLEN, Plaintiff, v. GREYHOUND CORPORATION, Defendant-Appellant, Earl Knight et al., Defendants, Clark County et al., Interpleaded Defendants-Respondents.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Herrick & Sigl, Eau Claire, for appellant.

Wilcox & Wilcox, Eau Claire, for respondents.

BEILFUSS, Justice.

Two issues are raised upon this appeal--(1) was it error to exclude the expert testimony, and (2) was it error to grant the motion for a directed verdict.

Greyhound called two county highway commissioners to give expert opinion testimony as to the proper manner of plowing snow and as to whether Lyons, the driver of the Clark county snowplow, operated the vehicle at an excessive speed. The two county highway commissioners were John E. Smith from Eau Claire county, and Stewart O'Flanigan from Dunn county. While testimony of the two witnesses is not identical, it is essentially so; for this reason the opinion will refer only to the testimony of Mr. Smith.

Mr. Smith had been a county highway commissioner for six years and employed in the general field of highway work for a period of 39 years. He supervised highway maintenance work, including snowplowing. He attended meetings of state highway personnel where the subject of snowplowing was discussed. He testified, however, that there were no written codes or standards as to proper or improper methods of snowplowing, excepting that snowplows should not be operated 'against traffic.' A hypothetical question setting forth substantially the same facts as reported above was put to Mr. Smith preliminary to asking him if he had an opinion as to the proper speed for a snowplow under those circumstances. (The hypothetical question fixed the speed of the snowplow at 20 to 25 miles per hour.)

An objection to the question was sustained by the trial court as follows: 'I am merely ruling that the question in the form that it is in and so forth does not make a proper case for an expert opinion; that it is invading the province of the jury. I am ruling on this one particular question and am not saying anything as to any other testimony you may or may not wish to offer.'

Counsel for Greyhound pursued the subject and sought Smith's opinion as to the effect speed would have upon the amount of snow blown and as to the safe methods of plowing under these circumstances. Cross-examination as to proper foundation was permitted and Smith admitted that the depth of the snow and the size and height of the blade 'would make a difference.' The hypothetical question did not contain this information and objection that insufficient foundation had been laid for an opinion was sustained. Smith was permitted to testify the faster you plow snow the higher it will be thrown in a strong wind and that it would impair visibility in the immediate area for other traffic.

In reconsidering the ruling on the expert testimony upon motions after verdict, the trial court stated:

'* * * An attempt was made to introduce expert testimony as to the safe manner of plowing snow but the Court rejected it. The Court felt and still feels that such testimony would invade the province of the jury. The two expert witnesses stated that there were no general rules promulgated by the State or any agency on the subject, except that no plow should plow against traffic. They testified that when the County Highway Commissioners would meet they would discuss plowing snow but there was no testimony that the group ever formulated or agreed to any standards or rules as to plowing snow. It is a matter of common knowledge that the faster a plow travels the more snow will be raised in the air and expert testimony is not needed to establish this. No proper foundation was laid for expert opinions. No testimony was offered as to the size or extent of the drifts being plowed, or as to the length, width or depth of the drifts or as to whether the snow was packed and heavy or was light. With snow that is deep and heavy a plow would obviously have to move and operate differently than with a very light snow. * * *'

Counsel for Greyhound in its brief and at oral argument states that he assumed the trial court sustained the objection to the opinions of Smith upon the ground that it invaded the province of the jury. The rulings of the trial court do reveal that the trial court did rely, in part, upon this ground. It is apparent the trial court also ruled that the hypothetical question as given 'did not make a proper case for expert opinion' and that no proper foundation had been laid.

Assuming that Mr. Smith and Mr. O'Flanigan were qualified as experts in a field beyond the common knowledge of jurors, an objection upon the sole ground that their opinions invade that province of the jury should not be sustained.

The recent case of Chapnitsky v. McClone (1963), 20 Wis.2d 453, 122 N.W.2d 400, dealt with this same problem. At pp. 462, 463, 122 N.W.2d at p. 405 we stated:

'Defendants' counsel objected to both questions on the ground that they invaded the province of the jury. The trial court sustained the objections to both questions. Plaintiff contends this ruling constituted prejudicial error. The question were not objectionable on that ground. This same issue was recently before us in Fehrman v. Smirl, 20 Wis.2d 1, 18, 121 N.W.2d 255, 264, and we therein stated:

"It is urged that these questions and answers were incompetent because they invaded the province of the jury. This court, however, is committed to the principle that expert opinion testimony is not objectionable merely because it covers one of the ultimate facts to be determined by the jury. Kreyer v. Farmers' Co-operative Lumber Co. (1962), 18 Wis.2d 67, 76, 117 N.W.2d 646; Zarnik v. C. Reiss Coal Co. (1907), 133 Wis. 290, 301, 113 N.W. 752; and Daly v. City of Milwaukee (1899), 103 Wis. 588, 590, 79 N.W. 752. See also, 7 Wigmore, Evidence (3d ed.), pp. 18, 20 § 1921."

Kreyer v. Farmers' Co-operative Lumber Co. (1962), 18 Wis.2d 67, 75, 117 N.W.2d 646, 650, 651, sets forth:

'Trial courts have wide discretion as to admitting opinion evidence of expert witnesses. Anderson v. Eggert (1940), 234 Wis. 348, 291 N.W. 365; Henthorn v. M. G. C. Corp. (1957), 1 Wis.2d 180, 83 N.W.2d 759, 79 A.L.R.2d 142.

'The principal rule on whether or not expert opinion evidence should be received is stated in the Anderson Case, supra, where the court held, 234 Wis. at p. 361, 291 N.W. at p. 370:

"Whether the testimony was properly received in this case depends upon whether members of the jury having that knowledge and general experience common to every member of the community would be aided in a consideration of the issues by the testimony offered and received."

In accord...