Merlino v. Mutual Service Cas. Ins. Co.

• Decision Date: 28 April 1964
• Citation: 23 Wis.2d 571,127 N.W.2d 741
• Parties: Vivian MERLINO, Plaintiff-Respondent, v. MUTUAL SERVICE CASUALTY INS. CO., Defendant-Respondent, Milwaukee & Suburban Transport Corp., Appellant.
• Court: Wisconsin Supreme Court

Page 741

127 N.W.2d 741

23 Wis.2d 571

Vivian MERLINO, Plaintiff-Respondent, v. MUTUAL SERVICE CASUALTY INS. CO., Defendant-Respondent Milwaukee & Suburban Transport Corp., Appellant.

Supreme Court of Wisconsin.

April 28, 1964.

Kivett & Kasdorf, Milwaukee, Nonald J. Lewis, Milwaukee, of counsel, for appellant.

Usow & Starobin, Milwaukee, for respondent.

CURRIE, Chief Justice.

The following issues are presented by the instant appeal and cross-appeal:

(1) Is there credible evidence to support the finding of causal negligence against the bus driver?

(2) If the preceding question is answered in the affirmative, was there a superseding cause which intervened to cause the collision that would relieve appellant from liability?

(3) Did the trial court commit prejudicial error in refusing to admit into evidence written statements subscribed by two of appellant's witnesses?

(4) Did the trial court commit prejudicial error in instructing the jury?

(5) Did the trial court commit prejudicial error in failing to submit a separate question in the special verdict as to whether an emergency existed with respect to the errand of the ambulance at time of accident?

(6) Did the trial court abuse its discretion in finding excessive the jury's award of $16,000 for impairment of plaintiff's earning capacity?

Causal Negligence of Bus Driver.

Sec. 346.19(1), Stats., provides that:

'Upon the approach of any authorized emergency vehicle giving audible signal by siren the operator of a vehicle shall yield the right of way and shall immediately drive such vehicle to a position as near as possible and parallel to the right curb or the right-hand edge of the shoulder of the roadway, clear of any intersection and, unless otherwise directed by a traffic officer, shall stop and remain standing in such position until the authorized emergency vehicle has passed.'

This statute required the bus driver to do two things as soon as he heard the siren of the ambulance to his rear. First, he was to clear the intersection and drive the bus as close to the west curb as possible. Secondly, he was required to then stop the bus. In passing on the questions of whether he complied with this statute, and, if he did not, whether such violation of the statute was causal, we must accept the version of the credible evidence which sustains the verdict. Rossow v. Lathrop (1963), 20 Wis.2d 658, 663, 123 N.W.2d 523.

Because there is a conflict in the testimony as to whether the bus was stopped or moving at time of impact, we must assume that it was still in motion. Furthermore, we must accept the testimony that the right side of the bus was then four feet from the west curb. The jury would have been warranted to infer from the slow speed of the bus that it would have been possible for the driver to have cleared the intersection and pulled over into the parking lane marked 'No Parking' and to have stopped next to the curb. Therefore, the jury could rightly conclude that the bus driver failed to comply with sec. 346.19(1), Stats., in both respects.

Turning to the question of causation, we do not deem as causal the fact that the bus may have been in motion instead of being stopped. We do determine, however, that the failure to have had the bus close to the west curb instead of four feet out in the street was causal. They jury could well conclude that if the bus at time of impact was three feet closer to the curb the accident would not have happened. This is a proper situation in which to apply the 'but for' test in determining whether a particular act of negligence was a substantial factor in causing the accident giving rise to plaintiff's damages. See Chapnitsky v McClone (1963), 20 Wis.2d 453, 465-466, 122 N.W.2d 400, 401.

Superseding Clause.

Appellant contends that any negligence of the bus driver was superseded as a legal cause of plaintiff's injuries by the intervening act of the driver of the automobile which passed the ambulance and cut in ahead of it thereby causing the ambulance driver to turn right and strike the bus.

We are satisfied that under the instant facts the act of the unidentified motorist was a concurring and not an intervening cause. An intervening force is defined in Restatement, 2 Torts, p. 1185, sec. 441(1) as follows:

'An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.' (Emphasis supplied.)

Likewise Prosser, Law of Torts (2d ed.), p. 266, sec. 49, states:

'An intervening cause is one which comes into active operation in producing the result after the actor's negligent act or omission has occurred.' (Emphasis supplied.)

See also Foellmi v. Smith (1961), 15 Wis.2d 274, 280, 112 N.W.2d 712.

Without an intervening force or act of negligence there can be no superseding cause. Restatement, 2 Torts, pp. 1184-1185, sec. 440. The rule with respect to concurring cause is stated, Id. p. 1184, sec. 439, thus:

'If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.'

Under the evidence most favorable to sustain the verdict, the bus driver at time of impact was operating the bus four feet from the curb. Therefore, the act of the unidentified motorist in cutting ahead of the ambulance was a concurring and not an intervening act of negligence in relation to the bus driver's negligence.

However, even if the bus had been stopped prior to impact so that the act of the unidentified motorist would be an intervening force, this would not necessarily make it a superseding cause. Whether it was a superseding cause would present a question of law for the trial court to decide after the verdict had been rendered. Strahlendorf v. Walgreen Co. (1962), 16 Wis.2d 421, 429-430, 114 N.W.2d 823; Ryan v. Cameron (1955), 270 Wis. 325, 331, 71 N.W.2d 408. In passing on this question of law the court should consider the test laid down in Restatement, 2 Torts, p. 1196, sec. 447. ¹ Dombrowski v. Albrent Freight & Storage Corp. (1953), 264 Wis. 440, 445, 59 N.W.2d 465.

Under the test laid down by the Restatement, the intervening negligent act of the unidentified motorist would not be a superseding cause if the bus driver should have realized that this might occur. A reasonably prudent driver in the bus driver's position should have realized that danger of collision between the ambulance and the bus would likely be increased as a result of the acts of other motorists if the bus driver did not comply with the statutory requirement of pulling over to the curb and then stopping. The fact that a reasonably prudent driver in his situation would not have anticipated the particular act of negligence indulged in by the unidentified motorist is immaterial. Essentially in order for the intervening act of negligence to constitute a superseding cause it must be such that the conscience of the court would be shocked if the first actor were not relieved from liability. On the record before us our conscience is not shocked by the jury's imposing liability on the transport company for the negligence of its bus driver.

Admissibility of Witnesses' Statements.

During the course of the trial appellant transport company called as its witnesses, Jerome Kiefert and Violet Krause. Upon cross-examination of these witnesses by opposing counsel it was brought out that they had given the transport company written statements about the facts surrounding the accident observed by them. Opposing counsel then asked for production of these statements and they were handed to them by appellant's counsel. ² These statements were then used by opposing counsel in cross-examining these two witnesses, but no parts of the statements were read into the record. Thereafter, appellant's counsel offered the two statements in evidence, plaintiff's counsel objected, and the trial court sustained the objection and excluded the statements. Appellant contends that this ruling constitutes prejudicial error.

There is a division of authority in this country on the point at issue. 20 Am.Jur., Evidence, p. 775, sec. 920; Anno. 151 A.L.R. 1006. The so-called English rule, which is apparently followed by a majority of American jurisdictions, is that where a document is produced in response to a call therefor by the adverse party, and the adverse party examines it, the party producing it has the right to have it introduced in evidence. Leonard v. Taylor (1944), 315 Mass. 580, 53 N.E.2d 705, 151 A.L.R. 1002. Wigmore severely criticizes this rule. 7 Wigmore, Evidence (3d ed.) pp. 557 et seq., sec. 2125. He points out that this rule was in keeping with the 'sportsmen's rules' of the common-law system. The underlying theory was that a party was not entitled to know or inspect the documentary evidence of the opposing party and, if he took the chance of asking that documents be produced without knowing what they contained, then he should be penalized, if he examined the produced documents, by having them admitted in evidence. This is hardly in keeping with modern trends that a lawsuit is not to be conducted as a contest of skill but rather a search for truth and justice, and discovery of evidence in possession of the opposing party is to be encouraged. Therefore, we refuse to adopt the 'English rule.'

If opposing counsel had used certain portions of these statements for impeachment purposes, then appellant would have been entitled to have admitted into evidence such other parts thereof that concerned the same subject and were explanatory of the part previously admitted or read by opposing counsel. 7 Wigmore, Evidence (3d ed.) p. 525, sec. 2113; Zimmerman v. Zimmerman (1950), 12 N.J.Super. 61, 79 A.2d 59.

Appellant cites ...