Leckwee v. Gibson, 76-560

• Decision Date: 29 June 1979
• Docket Number: No. 76-560,76-560
• Citation: 90 Wis.2d 275,280 N.W.2d 186
• Parties: Gregory LECKWEE, Plaintiff-Appellant, v. Robert GIBSON and American Mutual Liability Insurance Company, a Massachusetts corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 186

280 N.W.2d 186

90 Wis.2d 275

Gregory LECKWEE, Plaintiff-Appellant, v. Robert GIBSON and American Mutual Liability Insurance Company, a Massachusetts corporation Defendants-Respondents.

No. 76-560.

Supreme Court of Wisconsin.

Submitted on Briefs May 31, 1979.

Decided June 29, 1979.

Norman C. Anderson, Niles Berman and Wheeler, Van Sickle, Anderson, Norman & Harvey, S. C., Madison, for plaintiff-appellant.

Michael M. Cassidy and Frank M. Coyne Law Office, Madison, for defendants-respondents.

BEILFUSS, Chief Justice.

The plaintiff in his motions after verdict and here on appeal contends (1) that there is no credible evidence to support a finding of causal negligence against him, that the jury's answers should be changed accordingly, and judgment entered in his behalf, or (2) that the 75 percent assessment of negligence against him is disproportionate as a matter of law and that a new trial should be ordered, or (3) that a new trial should be ordered in the interest of justice. We conclude the comparative negligence answers are disproportionate as a matter of law and reverse the judgment and order a new trial on all issues for reasons to be set forth below.

A description of the physical site of the area surrounding the scene of the accident is somewhat difficult to portray because the accident occurred with both vehicles coming off an intersecting highway with an overhead crossing and curving exit ramps. However the highway area immediately adjacent to the collision site presents a basically right angle intersection with one of the roads being designated an arterial highway.

The accident occurred on June 23, 1972 about 4:30 p. m., at the intersection of Aberg Avenue and an exit ramp of Packers Avenue in the City of Madison. Prior to the accident both vehicles had been traveling on Packers Avenue. The plaintiff had been going in a southerly direction on Packers Avenue and intended to travel in an easterly direction on Aberg Avenue. He came down off the ramp and turned left into Aberg. Aberg Avenue runs generally east and west; it is a four-lane highway with two lanes for each direction. Just after Aberg Avenue passes under the overhead the east and westbound lanes are separated by a raised boulevard-type of median strip. Aberg Avenue is an arterial highway. After turning onto Aberg the plaintiff traveled eastwardly for about 180 feet to a point where the exit ramps for northbound traffic on Packers Avenue intersect Aberg Avenue. The collision occurred in this intersection.

The defendant had been driving in a northerly direction on Packers Avenue and intended to go west on Aberg Avenue. He came down the exit ramp to the point where it intersects Aberg. A stop sign is erected there requiring motorists to stop before entering Aberg. The defendant did stop and then started to cross the intersection intending to turn left into the westbound lanes.

The plaintiff-motorcycle driver testified that just as he was coming out from under the overpass he saw the defendant's car stopped at the stop sign on the ramp exit road. He stated he was traveling in the left lane about four feet from the dividing line for the two eastbound lanes; that he was in second gear and traveling about 25 miles per hour; that he glanced at his tachometer in order to shift gears and when he looked up the defendant's car was in his lane 10 to 15 feet away. The plaintiff did not attempt to stop nor change his line of travel to avoid the collision. He testified there was about six feet from the north edge of the highway. The plaintiff's motorcycle struck the right front corner of the defendant's vehicle. The motorcycle and the plaintiff were thrown onto the median strip.

The defendant, Gibson, the driver of the car, testified that he had come down the northbound exit ramp intending to turn left on Aberg Avenue to proceed west on Aberg; that he had stopped at the stop sign and then proceeded at a very slow speed one to two miles per hour into the intersection; that he had looked to his left but could not see anything coming under the overpass; that his front seat passenger called his name in warning; that he then saw the plaintiff's motorcycle and immediately applied his brakes; that although he did not know the speed of the plaintiff in miles per hour, it was fast; and that the collision occurred just a "split second" later. The defendant received a traffic citation for failure to yield the right-of-way which he did not contest.

Roger A. Carey, the uniformed special investigator of the Madison Police Department who was called to the scene of the accident, also testified at the trial. He stated that the width of the two eastbound lanes of Aberg Avenue was 28 feet; however, just before the frontage road at the intersection where the accident occurred the through highway widened to 38 feet to provide for a left turn lane. Carey testified that he had been able to determine the estimated point of impact from the debris left in the roadway. According to his calculations, the impact occurred 23 feet north of the south curb line of Aberg Avenue and 13 feet east of a prolongation of the center median. That is to say, the estimated point of impact was almost in the middle of the left hand eastbound traffic lane. Carey further testified that the posted speed limit was 35 miles per hour and that there were no skid marks on the road from the motorcycle. In addition, he was allowed to read his summary of the account of the accident each driver gave to him, the defendant at the scene and the plaintiff in the emergency room of the hospital. These statements were contained in the following extract from his officer's report:

"He (Gibson) advised me that he had been proceeding on the frontage road prior to coming to Aberg, had stopped for the stop sign, looked both ways, didn't see anything coming, started out into the intersection, and was struck by a cycle."

"Driver of vehicle one ('67 Yamaha cycle) stated that he had been proceeding east on Aberg in the left traffic lane at about 15 miles per hour when he observed vehicle two stopped at the arterial stop sign on the Packers Avenue frontage road, southeast. He stated this vehicle pulled out directly into him, and he struck it."

The remainder of the testimony dealt with the injuries the plaintiff sustained in the accident. The plaintiff testified that his physician, Dr. Barash, told him that he had a dislocated fractured hip, a fractured knee and cuts on his ankle. Leckwee stated that he was hospitalized for six weeks. The injuries were very painful, requiring him to receive pain medication every four hours for the first couple of weeks. The pain in his hip and knee continued for several months after leaving the hospital. On three separate occasions in 1976 the hip pain recurred, again requiring medication; however Leckwee admitted he was no longer taking pain medication on a regular basis. Leckwee's hip and leg injuries required him to be in traction while in the hospital and, according to his testimony, to use crutches for about three months after his release. He stated that it had been several months before he could move his toes and that he still had problems moving his ankle and experienced numbness in his lower right leg. Leckwee first declared that he had been unable to drive until about four months after leaving the hospital on August 2, 1972. However, subsequent testimony indicated that he had been arrested for racing while driving an automobile on August 18, 1972.

Dr. Harvey Barash, the orthopedic surgeon who was the plaintiff's treating physician, testified regarding the plaintiff's injuries, treatment and prognosis for total recovery. Plaintiff's injuries, which Dr. Barash described as very painful injuries, included a closed fracture and dislocation involving the right hip, an open fracture involving the proximal tibia (the main bone in the lower leg), and numerous soft tissue injuries of the lower right leg. The hip and leg fractures did not require surgery. However, the wound on the ankle necessitated a skin graft operation which was performed on July 14, 1972 by another specialist. In this operation skin was taken from the plaintiff's thigh and grafted in an area on his right ankle about one and one-half inches in diameter. Dr. Barash testified that there had been no major problems and the operation came out quite well. Essentially the treatment for the fractures consisted of maintaining non-weight bearing, initially through the use of "soft Buck's traction" and later through the use of crutches.

We will not detail the rest of the medical testimony offered by either the plaintiff or defendants for the reason we will order a new trial on all issues.

The first issue in this appeal concerns the request to change the special verdict answer which found that the plaintiff Leckwee, the arterial driver, was causally negligent. When a jury verdict is attacked the evidence will be viewed in the light most favorable to the verdict and the verdict will be affirmed if supported by any credible evidence. Nelson v. Travelers Ins. Co., 80 Wis.2d 272, 282-83, 259 N.W.2d 48 (1977). ¹ This is especially so when the verdict has the trial court's approval. Olson v. Milwaukee Automobile Ins. Co., 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740 (1954); Hibner v. Lindauer, 18 Wis.2d 451, 118 N.W.2d 873 (1963). The factual issues were submitted to the jury on an ultimate fact verdict which inquired whether the party named was negligent without reference to specific acts or failure.

The plaintiff's attack on the sufficiency of the evidence is three-pronged: (1) Leckwee had no duty to reduce his speed at the intersection since he was the party proceeding on the arterial highway; (2) even assuming a duty, there was insufficient evidence in the record to support a finding that Leckwee was negligent with respect to speed; (3) under the emergency doctrine, since Leckwee was suddenly confronted with...