Knox v. American Standard Ins. Co. of Wisconsin, 157

• Decision Date: 28 June 1974
• Docket Number: No. 157,157
• Parties: Robert KNOX, Respondent, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, a Wisconsin corp., Appellant.
• Court: Wisconsin Supreme Court

Page 333

219 N.W.2d 333

64 Wis.2d 229

Robert KNOX, Respondent, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, a Wisconsin corp., Appellant.

No. 157.

Supreme Court of Wisconsin.

June 28, 1974.

Jasper, Winner, McCallum & Sauthoff, John D. Winner, Madison, for appellant.

Kivett & Kasdorf, Milwaukee, for respondent; Nonald J. Lewis and William M. Cannon, Milwaukee, of counsel.

BEILFUSS, Justice.

The issue as we see it is whether there is credible evidence in the record to sustain the jury finding of 70 percent of the causal negligence on the part of Kenneth Puls, the deceased driver insured by the defendant-appellant, American Standard Insurance Company of Wisconsin, and a 30 percent finding on the part of Robert Knox, the plaintiff-respondent.

Innumerable cases stand for the legal proposition that if there is any credible evidence or permissible inference therefrom which support a jury verdict it should be sustained. This is particularly true as to questions of comparative negligence and more so when the verdict and the evidence have been reviewed and the verdict approved by the trial judge as was done here.

It is somewhat difficult to portray the physical scene in writing. We will attempt to do so.

State Highway 67 runs in a general north-south direction in the area in question. The plaintiff Robert Knox was driving his 1962 Rambler south on Highway 67 at about 8 p.m., on August 25, 1966. Members of his family were passengers. Kenneth Puls, at the same time, was driving his 1965 Chevrolet north on Highway 67.

As one drives south on Highway 67, as the plaintiff Knox was doing, the physical condition of the highway can be somewhat confusing. At a point near the point of impact, Highway 67 curves to the right or southwest, proceeds a few hundred feet southwesterly and then curves to the left to again assume a north-south direction. As you approach the first curve from the north going south, it intersects with Limestone Road, which also runs north-south. If you drive straight ahead on Highway 67 instead of making the curve tot he right, you are on Limestone Road. The utility poles adjacent to Highway 67 continue in a straight line and run adjacent to Limestone Road. Further, the view of a driver in the position of Knox to the right along the route of Highway 67 is somewhat restricted because of a high bank and brush and grass.

While Knox's testimony is somewhat weakened by prior inconsistent statements, the explanation given by him at the trial is as follows: As he approached the curve he was driving south with a destination of Oconomowoc. He was in his own right hand lane, traveling at a speed of 45 to 50 miles per hour. He had passed a highway sign suggesting a speed not in excess of 40 miles per hour. He first saw the Puls vehicle when the two vehicles were about 100 feet apart (in one inconsistent statement he said 15 to 20 feet apart). He testified the Puls vehicle was entirely in his lane of travel and that he turned into his left lane to avoid Puls; that Puls then turned back to his proper lane; that he then applied his brakes but the head-on collision occurred right at the point where it meets Limestone Road. Puls was killed as were two passengers in the Knox vehicle.

The physical evidence at the scene right after the accident conclusively shows that Knox's skidmarks were 50 feet long, all in Puls' lane of travel and terminated at the point of impact. The impact was entirely in Puls' lane of travel.

The only other eyewitness ot the collision who testified was Robert Steger. His version is...