Mackowski v. Milwaukee Auto. Mut. Ins. Co.

• Citation: 82 N.W.2d 906,275 Wis. 545
• Parties: Gladys MACKOWSKI, Respondent, v. MILWAUKEE AUTOMOBILE MUTUAL INS. CO., Appellant.
• Decision Date: 07 May 1957
• Court: Wisconsin Supreme Court

Page 906

82 N.W.2d 906

275 Wis. 545

Gladys MACKOWSKI, Respondent, v. MILWAUKEE AUTOMOBILE MUTUAL INS. CO., Appellant.

Supreme Court of Wisconsin.

May 7, 1957.

J. L. McMonigal, Berlin, for appellant.

Milton Spoehr, Berlin, Lehner & Lehner, Princeton, for respondent.

WINGERT, Justice.

We find no error and therefore affirm the judgment for the plaintiff.

1. The jury's finding that Stollfus was negligent with respect to speed is abundantly supported in the record. Reference need only be made to the testimony of the witness Kemnitz as summarized in the foregoing statement of facts.

It is contended that Kemnitz' observation of Stollfus' speed was too remote from the time and place of the accident, and hence the testimony should have been excluded or stricken. Kemnitz testified that Stollfus passed him at well above 95 miles per hour at a point about three miles west of the place of collision and gradually drew away from him, and that the last he saw of the Stollfus car was when it rounded a curve three-quarters of a mile west of the place of the accident. Reference is made to Neumann v. Evans, 272 Wis. 579, 76 N.W.2d 322, where speed at an intersection was in issue, and we held that a trial court had not abused its discretion in excluding testimony that the driver had been seen going 50 miles per hour at a point one-quarter of a mile before the intersection.

The present case is very different than Neumann v. Evans, 272 Wis. 579, 76 N.W.2d 322. There the excluded testimony was of a momentary observation of speed on an open road, whereas the question in issue was the speed at an intersection, a substantially different situation. In the present case, the Kemnitz testimony showed a continuous pattern of utterly unreasonable and unlawful speed for some ten miles (interrupted at the village of Green Lake), and the point of collision was still open country road. In such circumstances, the jury might reasonably infer that the consistent pattern of speed adopted over ten miles of open road was not abandoned in the eleventh mile. We think the trial court was well within the bounds of reasonable discretion in allowing the jury to consider the testimony.

Appellant attacks the testimony of Kemnitz as inherently incredible, and argues that the speeds of 95 and 105 miles per hour to which he testified would have been impossible to maintain on a highway with as many curves, albeit minor ones, as were shown to exist in highway 23 for several miles west of the place of the collision, at several of which were signs advising maximum speed of 50 or 55 miles per hour. Serious conflicts are also pointed out between the testimony given by Kemnitz at the trial and a statement made by him ten days after the accident. It is also said that the jury, in giving a negative answer to the question whether the boys were racing at or immediately preceding the collision, must have disbelieved Kemnitz' testimony on that point.

We consider, however, that the weight to be given to the Kemnitz testimony was for the jury. While some features of it strain one's credulity, and Kemnitz was a smart-aleck witness, we cannot say as a matter of law that he was so completely unworthy of belief that his testimony should have been excluded or stricken from the record, or that the jury could not properly believe most of it. Whether his testimony at the trial was closer to the truth than the story he told in his statement to the investigator a few days after the accident was for the jury to determine. The jury could make a large allowance for exaggeration in the testimony as to the continuous 95 and 105 miles per hour speed, and still find that Stollfus was going much faster than the permissible maximum of 55 miles per hour. On such a matter, suspected exaggeration does not necessarily deprive testimony of all weight as matter of law. Indeed, willfully false testimony on one point does not require the jury to reject all of the witness' evidence. Mercer v. Wright, 3 Wis. 645, 647; Miller v. State, 139 Wis. 57, 82, 83, 119 N.W. 850.

The inference of terrific speed at the point of collision was supported by photographs in the record showing an extraordinary degree of demolition of the two cars, and thus evidencing exceptional force of impact.

2. The finding of the jury that Stollfus was negligent in failing to yield one-half of the main traveled portion of the highway to Mackowski is supported by the testimony that...