Jaster v. Miller
| Decision Date | 08 March 1955 |
| Citation | 269 Wis. 223,69 N.W.2d 265 |
| Parties | Eugene N. JASTER, Plaintiff, v. Carlet MILLER, Respondent, Rural Mutual Cas. Ins. Co. et al., Defendants, Bruce Dodson, etc., et al., Appellants. Eugene N. JASTER, Plaintiff, v. Carlet MILLER, Defendant, Martin Kujak et al., d/b/a Walske Transfer, Appellants, Bruce Dodson, etc., Respondent. |
| Court | Wisconsin Supreme Court |
Johns, Roraff, Pappas & Flaherty, La Crosse, for Moore Freight Lines and Bruce Dodson.
Engelhard, Snodgrass & Goerdt, La Crosse, for Martin Kujak and others d/b/a Walske Transfer.
Hale, Skemp, Nietsch, Hanson & Schnurrer, Bosshard & Arneson, La Crosse, for Carlet Miller.
Counsel for Miller contends that since the bill of exceptions does not contain any motions made by the parties after verdict, this court may not properly review the evidence on appeal, citing Plankinton v. Gorman, 1896, 93 Wis. 560, 67 N.W. 1128, and Cayouette v. Emil T. Raddant B. Co., 1908, 136 Wis. 634, 118 N.W. 204. The contention is without merit. In those cases there were no written motions and, no oral motions being preserved in the bill of exceptions, this court held it could not review the evidence because there was no showing that the proper motions had been made. Written motions and a written decision thereon are of record here. It is immaterial that they are not incorporated into the bill of exceptions.
The crux of this entire case lies in the sharply conflicting evidence as to the position of the Miller car at the time of the accident. Miller maintained that after pulling completely onto the shoulder he stayed there until the impact occurred. Kujak's testimony was that the Miller car pulled onto the shoulder when he was 800 feet behind and that it stayed on the shoulder until he was 50 to 70 feet behind, when it turned left onto the highway. While Jaster could not tell whether or not the car was completely on the shoulder, he testified that from a block behind he saw 'it was to the extreme right of us,' 'it was entitely to our right;' that when the truck was within 70 to 80 feet it 'was in front of us;' that Kujak did not get over on the shoulder at any time while approaching the Miller car. None of the witnesses testified that Miller gave a signal of intention to turn.
The two versions were irreconcilable and the jury had to choose one or the other. When the accident happened either the car was completely on the shoulder, as Miller and his witnesses testified, or it was coming from the shoulder onto the highway, as Kujak testified and as is consistent with Jaster's testimony.
In submitting to the jury the question of Miller's negligence as to position on the highway, the court gave three separate instructions (which we number for convenience in referring to them):
(1) 'You will notice from the foregoing statutes that a person can not make a turn upon a highway either to the right or the left without giving an appropriate signal to traffic to his rear, of his intention to make such a turn, and such a signal must be for a distance of not less than 100 feet prior to the turn.
'Therefore, if you should find from the evidence that Carlet Miller was making a turn at the time of the collision and that he did not give an appropriate signal of his intention to make such turn, then you will find him negligent in that respect.'
(2)
(3) 'The statutes further provide that the operator of any vehicle that has been parked shall, while moving from such position, yield the right of way to all vehicles approaching on such highway * * *'
The second was the only instruction which the evidence permitted. Neither (1) nor (3) should have been given since there is no evidence in the record that Miller may have signaled an intention to turn or that the Miller car had been parked prior to the collision.
In finding Miller negligent as to his position on the highway the jury rejected his story that the car was completely on the shoulder when hit, and accepted the version testified to by Kujak and Jaster that Miller came onto the highway from the shoulder in front of the truck. The presence of the debris on the concrete tends to support the finding that the car was struck while on the pavement rather than on the shoulder.
In the light of the jury's finding on that question, the finding of negligent lookout on the part of Kujak cannot stand. If, as the jury concluded, the accident happened as and where Kujak said it did, it follows that he saw everything there was to see. He testified that his attention was never diverted from the Miller car from the moment he first saw it from the top of the hill. He described its position in detail as he observed it from that time to the moment of impact. Jaster's testimony as to the position of the Miller car, as he observed it from the time it was a block ahead of the truck, corroborates Kujak in what he saw. As to just when the Miller car came out in front of the truck, Kujak stated it was then 50 to 70 feet ahead, Jaster, that it was then 70 to 80 feet ahead. There is no conflict on that point; obviously both are estimates.
Counsel for Miller argues that neither the occupants of the Miller car nor Jaster saw a car approach from the west just before the collision, which Kujak testified he saw. But Miller stated he kept 'one eye' on the rear view mirror all the time the truck was approaching from behind. Mrs. Miller said she turned around and looked back once during that time, and the record indicates she and her husband were discussing something about the truck as it was catching up to them. Donna Mashak's entire testimony is negative in character. So far as Jaster is concerned, he admitted he paid little attention to traffic on the road. None of the witnesses except Kujak testified to paying constant attention to the road ahead. His positive testimony is not overcome by the negative testimony of the other witnesses. Under the circumstances, the fact that they did not see what he saw does not urge the conclusion that his lookout was faulty; rather it would tend to show that he was maintaining the more efficient lookout. In any event, it is his lookout with respect to the Miller car which is in point, since it is not contended that anything he saw or did about the other car had any causal connection...
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