Krolikowski v. Chicago & Northwestern Transp. Co., Inc.

• Court: Wisconsin Supreme Court
• Writing for the Court: ABRAHAMSON; HANSEN; I am hereby authorized to state that BEILFUSS, C. J., and CALLOW
• Citation: Krolikowski v. Chicago & Northwestern Transp. Co., Inc., 278 N.W.2d 865, 89 Wis.2d 573 (Wis. 1979)
• Decision Date: 30 May 1979
• Docket Number: No. 76-300,76-300
• Parties: Yvonne KROLIKOWSKI, incompetent, by her guardian, Robert F. Krolikowski, Plaintiff-Appellant, v. CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, INC., a Foreign Corporation, and Kenneth D. Bourgeois, Defendants-Respondents.

Page 865

278 N.W.2d 865

89 Wis.2d 573

Yvonne KROLIKOWSKI, incompetent, by her guardian, Robert F Krolikowski, Plaintiff-Appellant, v. CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, INC., a Foreign Corporation, and Kenneth D. Bourgeois Defendants-Respondents.

No. 76-300.

Supreme Court of Wisconsin.

Submitted on Briefs March 28, 1979.

Decided May 30, 1979.

Edward F. Neubecker, Barry F. Bruskin and Neubecker Schrinsky & McKnight, Milwaukee, submitted on briefs, for appellant.

Joseph D. McDevitt and Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, submitted on brief, for respondent Chicago & Northwestern Transp. Co.

ABRAHAMSON, Justice.

Mrs. Krolikowski suffered personal injuries and her husband and daughter were killed when their car, which had stopped in front of the railroad crossing gates, was pushed onto the railroad crossing by Bourgeois' moving car and was struck by a train operated by the Chicago & Northwestern Transportation Company, Inc. (C&NW). The jury determined that Bourgeois and the C&NW were both causally negligent, assigning 95 percent negligence to Bourgeois and 5 percent to the C&NW. We affirm that part of the trial court's order denying C& NW's motion for a directed verdict and reverse that part of the order granting C&NW's motion for a new trial on the issue of negligence.

I.

At about 8:00 p. m. on February 9, 1973, the Krolikowski car was stopped in front of the lowered railroad crossing gates at the intersection of West Beloit Road and the C&NW railroad tracks. A C&NW train approached the intersection. Snodgrass, the train engineer, saw the Krolikowski car stopped at the crossing and saw the car driven by Bourgeois approaching the rear of Krolikowski's car. Snodgrass realized that Bourgeois was going too fast to be able to stop before the crossing. Snodgrass testified that he did not blow the air horn on his engine to alert Bourgeois of the train because a West Allis ordinance prohibits the blowing of the horn, although Snodgrass admitted it was permissible to use the horn in an emergency.

Bourgeois testified that he first saw the Krolikowski car when he was "just about on top of it." He braked and turned to the left, hitting the left rear of the Krolikowski car with the right front of his own. The collision sent the Krolikowski car rolling onto the tracks. Wasylko, the train's brakeman, alerted Snodgrass, and just as the train reached the edge of Beloit Road, Snodgrass set the emergency brake and shut off the throttle. The train picked up the Krolikowski car and carried it for 1,360 feet, about two and one-half blocks.

II.

C&NW contends that the trial court erred in denying its motion for a directed verdict. A motion for a directed verdict will be granted if there is no credible evidence to sustain the verdict. ¹

C&NW contends that the evidence, taken most favorably to Krolikowski, requires the conclusion that its engineer was acting in an emergency not of his own making, that the time during which the engineer could react was so short that his reaction was instinctive or intuitive; that under the standard of the emergency rule the engineer's action or inaction in the emergency was not negligent as a matter of law; and that as a matter of law C&NW was entitled to the protection of the emergency doctrine. Seif v. Turowski, 49 Wis.2d 15, 23, 181 N.W.2d 388 (1970).

We conclude that there was credible evidence for the jury to find under the emergency rule ² that the engineer was negligent, that is, a reasonable person in the position of the engineer would have blown the train's horn to warn Bourgeois and others in the vicinity of the railroad crossing. Snodgrass' testimony indicated that he had time to react, to reason and to redecide what to do. The record shows that when Snodgrass realized that Bourgeois was going too fast to stop at the train crossing and that there was a possibility of a collision, he considered blowing the air horn as a warning that the train was coming. He testified that he did not blow the horn because a West Allis ordinance prohibited blowing the horn. But he admitted that the ordinance permitted him to blow the horn in an emergency.

The right front corner of the Bourgeois car hit the left rear corner of the Krolikowski car. The jury could have concluded that if Bourgeois had been alerted to the danger sooner than he was, the collision would have been avoided.

The trial court determined, on the basis of testimony regarding the distances, speeds and times involved in the incident, that 1.96 seconds elapsed between the time that Snodgrass realized that Bourgeois was going too fast to stop and the time that Bourgeois hit the Krolikowski car. Relying upon the standard reaction times stated in the Wisconsin Motorists Handbook, the trial court found that it would take Snodgrass 3/4 of a second to activate the air horn and Bourgeois 3/4 of a second to react to the horn and take action. The trial court further found that the remaining .46 second was sufficient time for the Bourgeois car to turn so as to miss the Krolikowski car, taking into account the fact that Bourgeois struck the Krolikowski car's left rear with his right front.

C&NW asserts that the evidence shows that Bourgeois had been drinking, the tape machine in his car was playing loud music, and there was a wet road surface. C&NW argues that it therefore would have taken Bourgeois more than 3/4 of a second to react to the horn and more than .46 seconds to turn his car far enough to avoid the Krolikowski car. Notwithstanding the evidence to which C&NW points, the evidence as a whole, taken most favorably to Krolikowski, suffices to support the jury's finding of causal negligence.

We conclude that the trial court properly denied C&NW's motion for a directed verdict.

III.

Krolikowski contends that the trial court erred in granting a new trial on the issue of negligence in the interest of justice.

Sec. 805.15, Stats., governs motions for a new trial and the order granting a new trial. It provides that a party may move for a new trial in the interest of justice.

Sec. 805.15(1), Stats., provides:

"805.15 New trials. (1) MOTION. A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice. Orders granting a new trial on grounds other than in the interest of justice, need not include a finding that granting a new trial is also in the interest of justice."

Sec. 805.15(2), Stats., requires that an order granting a new trial in the interest of justice specify the reasons that prompted the court to so act.

"(2) ORDER. Every order granting a new trial shall specify the grounds therefor. No order granting a new trial shall be valid or effective unless the reasons that prompted the court to make such order are set forth on the record, or in the order or in a written decision. In such order, the court may grant, deny or defer the awarding of costs."

A new trial may be granted in the interest of justice when the jury findings are contrary to the great weight and clear preponderance of the evidence, even though the findings are supported by credible evidence. Stewart v. Wulf, 85 Wis.2d 461, 472, 271 N.W.2d 79 (1978); First Wisconsin Land Corp. v. Bechtel Corp., 70 Wis.2d 455, 462, 235 N.W.2d 288 (1975); Loomans v. Milwaukee Mut. Ins. Co., 38 Wis.2d 656, 660-63, 158 N.W.2d 318 (1968); Brunke v. Popp, 21 Wis.2d 458, 462, 124 N.W.2d 642 (1963). The order granting a new trial in the interest of justice must contain the reasons and bases for the general statement contained therein that the verdict is against the great weight and clear preponderance of the evidence. Review by this court is ordinarily limited to the reasons specified in the trial court's order. Loomans, supra, 38 Wis.2d at 661, 666, 158 N.W.2d 318.

On review of an order granting a new trial in the interest of justice, this court does not seek to sustain the verdict of the jury but looks for reasons to sustain the findings and order of the trial judge. The granting of a new trial is in the discretion of the trial court, and this court may reverse only where a clear abuse of discretion is shown. The principles guiding the supreme court in its review of the trial court's discretion were stated in Bartell v. Luedtke, 52 Wis.2d 372, 377, 190 N.W.2d 145, 148 (1971):

" '. . . It is elementary that in such cases the supreme court does not look for evidence to sustain the jury's findings, but seeks reasons for sustaining the trial court. Essentially, the supreme court usually defers to the trial court's decision because of the trial court's opportunity to observe the trial and evaluate the evidence, and the order is highly discretionary. If one ground relied upon by the trial court in granting a new trial in the interest of justice is correct, this is sufficient to affirm the order of the trial court.' (Citation omitted.)"

No abuse of the trial court's discretion will be found if the trial court sets forth a reasonable basis for its determination that one or more material answers in the verdict are against the great weight and clear preponderance of the evidence. Brunke v. Popp, supra, 21 Wis.2d 458, 462-63, 124 N.W.2d 642. There is an abuse of discretion if the trial court grounds its decision upon a mistaken view of the evidence or an erroneous view of the law. McCarthy v. Thompson, 256 Wis. 113, 40 N.W.2d 560 (1949); Quick v. American Legion 1960 Convention Corporation, 36 Wis.2d 130, 152 N.W.2d 919 (1967).

On review of the record we conclude that we must reverse the order granting the new trial in the interest of justice in the case at bar because the reason set forth as prompting the order is not warranted by the evidence.

The trial court stated in its memorandum decision that it granted the new trial on the ground...