Lipinski v. Pakulski
| Decision Date | 05 March 1974 |
| Docket Number | No. 276,276 |
| Citation | 215 N.W.2d 468,62 Wis.2d 628 |
| Parties | Jan R. LIPINSKI, Appellant, v. Robert E. PAKULSKI et al., Respondents. |
| Court | Wisconsin Supreme Court |
Petrie, Stocking, Meixner & Zeisig, S.C., John A. Stocking, Milwaukee, for appellant.
Otjen, Philipp & McFadyen, Carl N. Otjen, Milwaukee, for respondents.
The plaintiff contends that the verdict and judgment should be reversed as a matter of law, because there was evidence that, immediately before the accident, the defendant had diverted his attention to the rear of the car and did not see the vehicle approach him from the right until after that car had almost passed him and was commencing to cut in front of him. Those facts, even if uncontradicted, do not constitute negligence as a matter of law. We said in Duby v. Columbia County (1927), 194 Wis. 172, 174, 215 N.W. 819, 820:
'It is not negligence as a matter of law for the driver of an automobile to fail to keep his eye constantly fixed upon the road in front of him, in the absence of any warning that there may be danger ahead.'
This court has consistently held that whether a party is negligent in diverting his attention from the roadway ahead of him is a matter to be decided by the jury. Elkey v. Elkey (1940), 234 Wis. 149, 290 N.W. 627, 292 N.W. 300; Helgoe v. Bade (1930), 201 Wis. 193, 229 N.W. 541; Grandhagen v. Grandhagen (1929), 199 Wis. 315, 225 N.W. 935.
It is apparent from this line of cases that this court will not reverse on the ground that the defendant was negligent as a matter of law. Under the facts of record, a jury question in respect to lookout may well have been posed. However, the plaintiff's attorney asked for no instruction on lookout, and the trial judge did not include any specific instruction on that element of negligence.
Additionally, the plaintiff argues that the court should not have instructed the jury at all in respect to management and control, since, in his opinion, the emergency doctrine was not applicable to the case because the emergency, if any, was due to the defendant's faulty lookout. However, the transcript shows that management and control was the major issue revealed at trial. The court instructed the jury:
'You will bear in mind that this instruction on the emergency rule is to be applied only in regard to the inquiry of negligence as to management and control.'
The instruction was proper under the circumstances.
The plaintiff argues that, in any event, it was error to have instructed the jury on the right of a defendant to be exonerated from negligence as to management and control in the case of an emergency when there was no underlying and detailed instruction explaining negligence as to management and control.
While an examination of the record reveals that the instruction to the jury in respect to lookout might well have been given and the instruction in respect to the emergency rule might have been more explicit, those instructions were not requested by the plaintiff's attorney. The record shows that, prior to the submission of the instructions, a conference was held out of the presence of the jury in which the parties were given an opportunity to propose instructions and special verdict questions. At that conference it was apparent that the trial judge had previously made known to the parties what instructions he proposed to give to the jury. Only in respect to the instructions involving damages for personal injuries did the plaintiff offer any suggestions or object to the instructions that the trial judge proposed.
After the jury was instructed, the trial judge asked the lawyers for both plaintiff and defendant whether they had any corrections to make or whether there had been any omissions. Both stated that they were satisfied with the instructions as given.
Under these circumstances, an appellant is precluded on appeal from arguing that other or additional instructions should have been given. The instructions that were given were not erroneous. Even under the plaintiff's theory of the case, the most that could be said is that they were incomplete. We...
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...'suffered a lot of pain and she's going to suffer a lot of pain in the future.' As this court observed in Lipinski v. Pakulski (1974), 62 Wis.2d 628, 635, 215 N.W.2d 468, 472: '. . . (S)pecial weight is given the jury's findings where, as here, they have had the specific approval of the tri......
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Salveson v. Douglas County
...¶ 5. We sustain a jury's factual determinations if there is any credible evidence to support its verdict. See Lipinski v. Pakulski, 62 Wis. 2d 628, 635, 215 N.W.2d 468 (1974). We are even more reluctant to interfere when the trial judge has approved the jury verdict. See Herman v. Milwaukee......
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...question is presented. . . .' Citing Martin v. Outboard Marine Corp. (1962), 15 Wis.2d 452, 113 N.W.2d 135.19 Lipinski v. Pakulski (1974), 62 Wis.2d 628, 635, 215 N.W.2d 468, citing Leatherman v. Garza (1968), 39 Wis.2d 378, 159 N.W.2d 18.20 Leatherman v. Garza, supra, at page 386, 159 N.W.......
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...62 Wis.2d 233, 226 N.W.2d 480 (1975); Knox v. American Standard Ins. Co., 64 Wis.2d 229, 219 N.W.2d 333 (1974); Lipinski v. Pakulski, 62 Wis.2d 628, 215 N.W.2d 468 (1974). There is sufficient credible evidence to support the jury's finding, and we will not disturb it on II. Defendant also c......