Menge v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 07 February 1969
• Docket Number: No. 107,107
• Citation: 164 N.W.2d 495,41 Wis.2d 578
• Parties: Thedore L. MENGE, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 495

164 N.W.2d 495

41 Wis.2d 578

Thedore L. MENGE, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al., Appellants.

No. 107.

Supreme Court of Wisconsin.

Feb. 7, 1969.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for appellants.

Bittner, Petitjean, Greenwood & Hinkfuss, Green Bay, for respondent.

HANLEY, Justice.

The following issues are presented on this appeal:

(1) Did the trial court err in giving the emergency instruction;

(2) If there was error, was it prejudicial;

(3) Is an objection to a jury instruction properly made when it is raised initially on motions after verdict;

(4) Did the trial court err in failing to give certain jury instructions requested by the plaintiff; and

(5) Did the trial court abuse its discretion in ordering a new trial?

Emergency Instruction.

'The emergency instruction is proper when three conditions are met:

'(1) The party seeking its benefits must be free from the negligence which contributed to the creation of the emergency; (2) the time element in which action is required must be short enough to preclude the deliberate and intelligent choice of action; and (3) the element of negligence inquired into must concern management and control. * * * ' Edeler v. O'Brien (1968), 38 Wis.2d 691, 697, 698, 158 N.W.2d 301, 304. See also: Gage v. Seal (1967), 36 Wis.2d 661, 154 N.W.2d 354, 155 N.W.2d 557; Geis v. Hirth (1966), 32 Wis.2d 580, 591, 146 N.W.2d 459.

There was no question of improper management and control in this case. The defendant testified that he never saw the plaintiff until the impact. The emergency instruction ¹ is designed to relieve a driver who is confronted with an emergency from being labeled negligent in connection with his manner of management and control. Schmit v. Sekach (1966), 29 Wis.2d 281, 289, 139 N.W.2d 88. The defendant here was never confronted with an emergency decision because he never recognized that an emergency existed. There is no contention in this case that the defendant's 'choice of action or inaction' was imprudent. No choice was ever made.

Moreover, even if the defendant's management and control was in question in this case, the emergency instruction would not have been proper because it is obvious that the failure of the defendant to keep a proper lookout contributed to this accident.

'Because the circumstances leading to the collision could have been prevented by the defendant if he had kept a proper lookout, the emergency rule does not apply to this case. * * * ' Reddick v. Reddick (1961), 15 Wis.2d 37, 41, 112 N.W.2d 131, 133.

The trial court did not find either the plaintiff or the defendant in this case negligent as a matter of law. However, the evidence established that both parties to this collision failed to keep a proper lookout as a matter of law.

The trial court properly concluded that it was error to give the emergency instruction.

Was Error Prejudicial?

In his written decision on motions after verdict, the trial court reasoned to the conclusion that it was error to give the emergency instruction. He went on to say:

'I am of the opinion, therefore, that giving the emergency instruction * * * to the jury was prejudicial to the plaintiff and a new trial must be granted.'

There is no discussion as to why the error was prejudicial.

Not every error during a trial is prejudicial.

'In determining whether an error in instructions is prejudicial, the instructions must be considered as a whole. * * *

'* * * '* * * In passing on the prejudicial effect of an erroneous instruction the test is not the possibility of the jury being misled, but the probability thereof. * * * ' Willenkamp v. Keeshin Transport System, Inc. (1964), 23 Wis.2d 523, 529, 127 N.W.2d 804, 807, and cases cited therein.

The emergency instruction which was given in this case reads as follows:

'You are instructed that drivers of motor vehicles who are suddenly confronted by an emergency, not brought about or contributed to by their own negligence, and who are compelled to act instantly to avoid collision or injury, are not guilty of negligence if they make such choice of action or inaction as an ordinarily prudent person might make, if placed in the same position, even though it should afterwards appear not to have been the best or safest course. You will bear in mind however that the rule just stated does not apply to any person whose negligence wholly or in part created the emergency. One is not entitled to the benefit of the emergency rule unless he is without fault in the creation of the emergency.'

It has already been pointed out that there was no evidence of improper management and control in this case. The jury was instructed that the driver of an automobile has a duty to keep a proper lookout. They were also instructed as to when a driver must yield the right-of-way to a pedestrian. These two types of negligence were the only ones ultimately attributed to the defendant. Either type of negligence would have contributed to an emergency if one had been created. The jury did find the defendant 30 percent negligent. If they felt that an emergency was created, they obviously also felt that the defendant contributed to the emergency. Thus they were compelled to disregard the emergency instruction in any event. It is highly unlikely that a jury would follow the first part of the instruction, but disregard the second part. Thus, the emergency instruction could not have caused the jury to lessen the percentage of negligence which was attributed to the defendant.

If the instruction is read as a whole, it could not have been prejudicial to the plaintiff.

Objection to Instructions on Motions After Verdict.

There was no objection to the giving of the emergency instruction until after the rendering of the verdict.

'An objection to the instructions for inadequacy or insufficiency must also be made at least prior to the return of the verdict. Generally, counsel should timely submit his requested instructions, but if this is not done and the instructions given are not erroneous as a misstatement of the law but are incomplete, it is the duty of counsel to object at the time the instruction is given. * * * Absent proper objections by the plaintiff, these alleged errors in the verdict and the instructions are not before us.

'However, the plaintiff argues the instructions were erroneous in misstating the law * * * and such error was preserved by being used as a ground for a motion for a new trial. * * * We consider this assignment of error properly raised. * * * ' Savina v. Wisconsin Gas Light Co. (1967), 36 Wis.2d 694, 702, 154 N.W.2d 237, 241.

It was error to give the emergency...