McPhillips v. Blomgren

• Decision Date: 01 March 1966
• Citation: 140 N.W.2d 267,30 Wis.2d 134
• Parties: John E. McPHILLIPS, Appellant, v. David BLOMGREN et al., Respondents.
• Court: Wisconsin Supreme Court

Page 267

140 N.W.2d 267

30 Wis.2d 134

John E. McPHILLIPS, Appellant, v. David BLOMGREN et al., Respondents.

Supreme Court of Wisconsin.

March 1, 1966.

Robert R. Gavic, Spring Valley, John Oltman, Ellsworth, for appellant.

Gwin & Fetzner, John W. Fetzner, Hudson, for respondents.

BEILFUSS, Justice.

The plaintiff-appellant concedes that a trial court's order for a new trial in the interests of justice will not be reversed unless there is a clear showing of abuse of discretion.

He does contend, however, that if the evidence was sufficient to support the jury's findings the verdict should not be set aside nor a new trial granted. ¹

This court has not so restricted the trial court in ruling upon a motion for a new trial in the interests of justice.

'It is well established that the supreme Court will affirm the trial court's order for a new trial in the interest of justice unless there is a clear showing of abuse of discretion. A trial court has wide discretion to order a new trial in the interest of justice if the verdict is against the great weight and clear preponderance of the evidence, although the evidence is not so insufficient as to justify changing the answers to the special verdict questions.

'As an incident of making a judgment that a verdict is against the great weight and clear preponderance of the evidence, the trial court must be able to evaluate the general credibility of the witness based upon his appearance and demeanor, as well as evaluating the internal content and consistency of his testimony.' Flippin v. Turlock (1964), 24 Wis.2d 49, 54, 55, 127 N.W.2d 822, 825. ²

In this instance the trial court ordered a new trial upon several grounds. These grounds are summarized in the memorandum opinion as follows:

'Because of the failure to find any negligence on the part of the plaintiff; because of the Court's failure to adequately instruct the jury relative to the duty of the plaintiff to yield the right of way and relative to the lack of any cross walk being present and because of the fact that the Court feels there should be a comparison of negligence by the jury and because of the excessiveness of the verdict, the Court concludes that a new trial should be granted to the defendants upon those grounds and also on the general grounds of being in the interests of justice.'

'And also on the general grounds of being in the interests of justice' is an insufficient statement, standing alone, to warrant the granting of a new trial under the new trial statute. ³ That statute requires that the reasons for a new trial in the interest of justice be set forth in the order or memorandum.

We conclude that the reasons set forth by the trial court for a new trial are sufficient to warrant the granting of a new trial in the interests of justice. It is apparent that the trial judge concluded that justice had not been done and he stated his reasons therefor. Some of these reasons standing alone may be sufficient to sustain an order for a new trial on other statutory grounds. However, the appellant has treated the order for a new trial as one granted in the interests of justice and we shall so consider it.

The jury found that plaintiff pedestrian was not negligent and assessed 100 percent of the causal negligence to the defendant, auto-driver. The trial court was of the opinion under the facts and the law that the plaintiff was negligent in some degree.

The right of way statute provides that a pedestrian must yield the right of way to a motorist at any place on the roadway other than on a marked or unmarked crosswalk. ⁴

In response to a request by the respondent the court instructed the jury as follows:

'With reference to question 3 which inquires as to negligence to John E. McPhillips, you are instructed that a pedestrian crossing a street or highway must exercise ordinary care to keep a careful lookout as he enters and proceeds to cross, to enable him to become timely aware of the presence and location of oncoming traffic. The exercise of ordinary care by such a pedestrian requires him to observe timely the presence, location, and movement of motion vehicles that may be approaching his course of travel.

'When a pedestrian crosses at a place other than a crosswalk, it is his duty to maintain such a lookout as is reasonably necessary to enable him to yield the right of way to motor vehicles approaching his line of travel, since they have the right of way over him.

'You are further instructed that the Wisconsin statutes define right of way as the privilege of the immediate use of the roadway.

'The statutes further provide that 'Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to all vehicles upon the roadway.'

'If you find that the pedestrian was crossing the roadway at a point other than a marked or unmarked crosswalk, then it became his duty to yield the right of way to the automobile approaching on the highway.'

The trial court was of the opinion that the evidence conclusively showed that there was not a crosswalk, either marked or unmarked, at the place where McPhillips crossed the highway and that he was therefore negligent in failing to yield the right of way. Upon motions after verdict the trial court further stated that the pedestrian right of way instruction as given was not explicit as to a definition of a crosswalk and that the jury might well have concluded that if McPhillips and crossed the center line he was not required to yield the right of way.

The instruction as given is not an erroneous statement of the law and the respondent is in poor posture to complain for the reason that the instruction was given substantially as he requested. Sec. 340.01(10), Stats., does define a marked or unmarked crosswalk. ⁵ If the evidence conclusively established that area of roadway where McPhillips crossed was not a crosswalk, either marked or unmarked, then an instruction advising the jury that it was the duty of McPhillips to yield the right of way would have been sufficient. ^5a

The trial court could properly conclude that McPhillips was negligent as a matter of law in failing to yield the right of way if he was struck while on the roadway at a place other than a crosswalk. It could also conclude the finding of no negligence on the part of McPhillips was against the great weight and clear preponderance of the evidence because the proof did establish there was not a crosswalk.

The trial court further concluded that the damages awarded by the jury were excessive. In addition to his medical expenses McPhillips was awarded $20,000 for personal injuries. McPhillips was seventy-eight years old at the time of the injury and eighty years old at the trial. His life expectancy was four and one-third years. He was retired and suffered no wage loss. Prior to the accident he was in good health for a man his age. He was physically active and spent considerable time fishing.

His injuries were serious,--several lacerations, a skull fracture resulting in double vision in one eye, a fractured left leg, bruised left wrist, the loss of the fatty tissue or pad of his left heel and reduced left leg circulation. He spent several weeks in the hospital and was still in a wheelchair at the time of trial, some one and one-half years after the accident. His double vision is permanent but is corrected by glasses so as not to greatly inconvenience him. His left leg is three-fourths of an inch shorter and bowed. His left heel pad is permanently gone but he can obtain a shoe with a builtup heel to help alleviate this condition. The lack of proper circulation is permanent and can be the cause of additional difficulty because of a lack of sensation.

Dr. E. R. Jonas, the treating physician, testified on behalf of McPhillips. His prognosis was that MCPhillips would be walking...