Kinsman v. Panek
| Decision Date | 29 October 1968 |
| Citation | 40 Wis.2d 408,162 N.W.2d 27 |
| Parties | Richard T. KINSMAN, Respondent, v. Peter PANEK et al., Appellants. |
| Court | Wisconsin Supreme Court |
Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for appellants; Roger Rouse, Wausau, of counsel.
Weber & Bolte, Richard J. Weber, Wausau, for respondent.
In reviewing a trial court's order following motions after verdict, whether it sustains or sets aside a jury's verdict the same test is to be applied on appeal, namely:
'* * * that when there is any credible evidence which, under any reasonable view, fairly admits of an inference that supports the jury's finding, neither the trial court nor this court should change the jury's finding.' Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 248, 101 N.W.2d 83, 85.
Frequently, on appeal, the court's decision on motions after verdict has been attacked by an appellant who seeks to set aside a verdict which has received the approval of the trial judge. In those cases we have stated the rule:
'The jury's findings which have the approval of the trial court will not be disturbed if there is any credible evidence to support such findings.' Ide v. Wamser (1964), 22 Wis.2d 325, 331, 126 N.W.2d 59, 62.
In any case, however, this court looks to the jury's verdict; and if there is credible evidence to sustain the jury's verdict, it will be upheld whether or not it receives the approval of the trial judge. The lest is the same in either case. We thus look to the evidence to determine whether there is any credible evidence to support the jury's verdict.
The appellants' theory of the case is predicated upon their assumption stated in their brief that:
'Mr. Panek's vision was obscured suddenly and without warning and the extent of the limitation of vision was not at all apparently until he started into the blowing snow and at which time he immediately took every possible action to reduce his speed and stop.'
Were there any credible evidence to support this assumption, the appellants' position would be arguably meritorious. A careful perusal of the record reveals no such evidence. True, Mrs. Panek testified:
This answer, however, was in response to counsel's question, 'What was the visibility in the area where the accident took place?' There was no dispute that visibility was very limited. All of the witnesses testified that, within the blowing area, visibility was very bad. State Trooper Kinsman's report said it was almost 'nil.'
It is obvious that the defendant seeks to rely upon the emergency doctrine that the impact of the snowy area was unexpected and instantaneous and he was thereby confronted with an emergency which should exonerate him from the consequences of his conduct. We have, however, frequently stated that:
'* * * the party seeking the benefits of the emergency doctrine must be free from negligence which contributed to the creation of the emergency.' Geis v. Hirth (1966), 32 Wis.2d 580, 586, 146 N.W.2d 459, 463. See also Zillmer v. Miglautsch (1967), 35 Wis.2d 691, 151 N.W.2d 741; Schmit v. Sekach (1966), 29 Wis.2d 281, 139 N.W.2d 88.
Accordingly, in the event that it is apparent from the facts that a party is negligent as a matter of law and that such negligence contributed to the emergency, that party is not shielded by the emergency doctrine. In the instance case we are satisfied that if an emergency existed, as indicated by the testimony of Lily Panek, it is apparent that it was Panek's negligence that created the emergency.
As set forth in the statement of facts, Panek saw the area of heavily blowing snow from the crest of the hill to east. Kinsman testified without contradiction that the blowing area extended two-tenths of a mile to the east of the site of the accident. The uncontradicted evidence shows that the distance from Panek's point on the top of that hill to the area of the blowing snow was at a minimum of 780 feet and at that point Panek admitted that he was not able to see through the blowing area. He nevertheless proceeded to the area where the snow interfered with his visibility.
As stated by the trial judge, even though Panek admitted that his visibility was obscured to such an extent that he could not see beyond 40 feet, he proceeded in the whirling snow at a speed of 25 to 30 miles per hour for two-tenths of a mile until the point of...
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