McDonnell v. Timmerman

• Decision Date: 10 August 1959
• Docket Number: No. 16080.,16080.
• Citation: 269 F.2d 54
• Parties: Elsie McDONNELL, Guardian of the Estate of Ronald McDonnell, and Elsie McDonnell, Individually, Appellants, v. Jeanette TIMMERMAN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

269 F.2d 54 (1959)

Elsie McDONNELL, Guardian of the Estate of Ronald McDonnell, and Elsie McDonnell, Individually, Appellants, v. Jeanette TIMMERMAN, Appellee.

No. 16080.

United States Court of Appeals Eighth Circuit.

August 10, 1959.

F. H. Becker, Dubuque, Iowa, for appellants.

E. Marshall Thomas, Dubuque, Iowa (O'Connor, Thomas, McDermott and Wright, Dubuque, Iowa, Walter J. Cole, and Karrmann and Cole, Platteville, Wis., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Plaintiffs, appellants, brought this action to recover money damages for personal injuries and other loss arising out of a collision between a motorcycle operated by Ronald McDonnell and an automobile operated by Jeanette Timmerman, defendant-appellee. The accident occurred on October 27, 1956, at a highway intersection in Grant County, Wisconsin. Suit was originally instituted in the District Court of Dubuque County, Iowa, from which it was removed to the United States District Court for the Northern District of Iowa. As the accident occurred in Wisconsin, we are governed by the substantive law of that state. The parties will be designated as they were in the trial court.

The plaintiff, Ronald McDonnell, then age 17, was operating a motorcycle in an easterly direction on Highway 11. He had one passenger sitting behind him. Highway 11 is a state trunk arterial highway. At the place of the accident, it intersects with county trunk Z, which is an inferior highway and on which are located stop signs governing the approach to arterial Highway 11. The defendant, Jeanette Timmerman, then age 18, was driving a 1956 Hudson automobile in a northerly direction on county trunk Z. She was accompanied by two passengers in the front seat. The time was approximately 9:00 p. m. It was dark and both vehicles had their headlights on. The visibility was good, the weather clear and the pavement dry. Defendant testified she was driving approximately 40 miles per hour and as she approached the intersection she slowed down. Before she came to the intersection, she looked to the west, the direction from which the plaintiff was coming, but saw no traffic. Testimony was given that vehicles approaching the intersection from the west and south would be visible to one another for a distance of approximately one mile. Defendant stopped for the stop sign at a point about 15 feet from the south edge of Highway 11, looked to the right and then to the left. To her left she noticed a distant dim light. It appeared to be stationary at between one-half mile and one mile away. After she had stopped, she looked again to the right and then proceeded toward the intersection. When the front wheels of her car were approximately on the center of the Highway 11 pavement, she looked again to the left. She then saw a bright light and realized it was a motorcycle momentarily before it struck her vehicle. Defendant believed her average speed, from the time she started up at the edge of the pavement to the time of impact, to have been about five miles per hour.

Ronald McDonnell testified that, accompanied by Robert Parr, he was driving east on Highway 11 at a speed of about 50 or 55 miles per hour. When approximately one-quarter of a mile from the intersection, he noticed the Timmerman car at an equal distance from the intersection traveling on county trunk Z. He testified:

"The next thing I remember was hitting — well, the next thing I remember is applying both brakes as hard as I could, then I remember waking up in the hospital. * * * As to the interval of time between the time I saw the Timmerman car or a car over on County Trunk Z and the time I hit the brakes, well, there might have been a time there within 100 feet — within the intersection and there could have been more time, which I don\'t remember. I don\'t remember anything within the 100 feet of the intersection. As far as I can remember it was on Wednesday noon when I came to in the hospital. The accident happened on a Saturday night."

Robert Parr, who was riding with the plaintiff, received a brain concussion and had no recollection as to how the accident occurred. The two occupants of the defendant's car gave negligible testimony. Neither saw the plaintiff's motorcycle prior to the collision.

One Karl Burroughs was an independent eye-witness to the accident. He operated a grocery store located on the northeast corner of the intersection. He was standing in the doorway of his store and saw both vehicles approach the intersection and saw the collision itself. He first noticed the defendant's car coming from the south when it was approximately one-half mile from the intersection. It appeared to be traveling at a normal speed, came to the stop sign and stopped. As it started forward after stopping he heard the motorcycle and glanced to the west, from which direction it was coming. At this moment the motorcycle was approximately 600 feet from the intersection (he paced off the distance after the accident). Burroughs glanced at the motorcycle again just before the accident when it was roughly 200 feet from the point of collision, at which time he noticed nothing unusual about it. Its lights were on and he heard the motorcycle backfiring. He testified its lights were bright, "compared for a motorcycle". The car at the stop sign also had its lights on. When the motorcycle was about 200 feet from the intersection, Burroughs estimated its speed at about 45 miles per hour. When he first saw the motorcycle at a distance of about 600 feet away, he testified "* * * it was moving rather fast," and that its speed might have been slightly more or less than 55 miles per hour, which is the maximum allowable speed for night-time driving in Wisconsin. Wisconsin Statutes, sec. 85.40(1) (g).

The motorcycle was driven into the left side of the car, which was in the middle of Highway 11 at the time of impact. McDonnell was hospitalized for 20 days following the accident. He sustained a fracture of his left wrist, a 9-inch cut over his right kneecap and chip fractures of the right knee. He was unable to work for a period of five months. He has a permanent malposition of his left wrist and a probable permanent loss of gripping power in his left hand. The possibility of complete recovery from the injury to his right knee is uncertain, but appears likely.

By affirmative pleadings, each party charged the other with negligence in the operation of their vehicles. The Wisconsin law of comparative negligence is applicable. Wisc.Statutes, sec. 331.045. The case was submitted to a jury on a special verdict. The jury found each operator guilty of causal negligence with the percentage of each as follows: Jeanette Timmerman, driver of the car, 55%; Ronald McDonnell, operator of the motorcycle, 45%. The jury found that $3,320.00 would reasonably compensate McDonnell for his injuries and that $1,000.00 would reasonably compensate Elsie McDonnell, his mother, for loss of his services. The medical expenses were agreed to be $771.05, and the damage to the motorcycle $797.00. Judgment was granted on the basis of the percentages designated by the jury.

Plaintiffs claim that the trial court committed prejudicial errors and that the damages awarded to the plaintiffs were grossly inadequate under the evidence and the applicable law, and ask that the case be remanded for a new trial.

Plaintiffs' first contention is that the court erred in failing to submit to the jury six requested interrogatories inquiring as to defendant's causal negligence in three particulars: (1) lookout; (2) failure to yield the right-of-way; and (3) control of her automobile. The court refused to submit the six interrogatories, instructed the jury as will hereinafter be referred to, and submitted the case to it by means of a special verdict made up of five questions. The first inquired as to whether the defendant was guilty of causal negligence in the manner of operating her automobile, to which the jury answered "Yes." The second question inquired as to whether Ronald McDonnell was guilty of causal negligence in the manner of operating his motorcycle, to which the jury answered "Yes." The third question had to do with the percent of negligence of each as hereinbefore referred to. The fourth and fifth questions were directed to the amount of damages.

On this claim of error we are dealing with procedure and not substantive law. Rule 49(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., gives to the trial court discretion in the use of special verdicts. This discretion is not limited to the decision of whether or not to utilize a special verdict, but extends beyond to the form of the submitted interrogatories once such decision is made. Thus, in Norfolk Southern Ry. Co., v. Davis Frozen Foods, Inc., 4 Cir., 1952, 195 F.2d 662, second appeal 204 F.2d 839, certiorari denied, 346 U.S. 824, 71 S.Ct. 41, 98 L.Ed. 349, the court upheld the use of interrogatories inquiring into, as here, the general causal negligence of each party, stating:

"The formulation of issues, however, is a matter resting in the sound discretion of the trial judge, * *. The number and form of issues, if they present the case fairly, is a matter resting in the sound discretion of the trial judge. Rule 49(a) of Rules of Civil Procedure, 28 U.S. C.A." 195 F.2d at page 666.

See also, Thorp v. American Aviation and General Insurance Co., 3 Cir., 1954, 212 F.2d 821; DeEugenio v. Allis-Chalmers Mfg. Co., 3 Cir., 1954, 210 F.2d 409; Mourikas v. Vardianos, 4 Cir., 1948, 169 F.2d 53.

It will be observed that plaintiffs' interrogatories inquired as to defendant's (1) failure of lookout; (2) failure to yield the right-of-way; and (3) failure to have her car under control. The instructions to the jury in regard to its consideration of the interrogatories framed by the court covered the first two of these duties but not that of failing to...