Odya v. Quade

• Citation: 90 N.W.2d 96,4 Wis.2d 63
• Parties: Millicent ODYA, Respondent, v. Donald QUADE, Appellant, Milwaukee Automobile Ins. Co., a Wis. corporation, Interpleaded Defendant-Respondent.
• Decision Date: 06 May 1958
• Court: United States State Supreme Court of Wisconsin

Page 96

90 N.W.2d 96

4 Wis.2d 63

Millicent ODYA, Respondent, v. Donald QUADE, Appellant Milwaukee Automobile Ins. Co., a Wis. corporation Interpleaded Defendant-Respondent.

Supreme Court of Wisconsin.

May 6, 1958.

On April 10, 1954, Millicent Odya brought action against Donald Quade. Mrs. Odya sought to recover damages for personal injuries sustained November 1, 1953. She alleged that she was a passenger in an automobile operated by her husband, Eugene, when it collided with an automobile driven by Quade. Milwaukee Automobile Insurance Company had insured Mrs. Odya, who owned the car, and it was interpleaded. Quade filed a cross complaint against it for his own damages for personal injuries.

The collision occurred shortly before 1 o'clock a. m. at a curve in highway No. 15 near the west edge of the unincorporated village of New Berlin. The highway runs approximately northeast and southwest. Quade was driving southwest in a Chevrolet. Mr. and Mrs. Odya were in a Plymouth, heading northeast. The curve was toward the left for the Odyas and toward the right for Quade. There was a posted speed limit of 35 miles per hour.

Odya died after being taken to the hospital; Mrs. Odya could not remember any event later than the previous afternoon; and Quade could not remember the impact. Quade testified that he was picking up speed after coming through the village and was traveling 40 to 45 miles per hour in his own lane. He was just on the curve when he first saw the Odya car, four or five carlengths away from him. He testified that Odya's lights 'were very bright blinding lights;' that he remembered slowing up and reaching for the brake; that he didn't remember a thing after that. A deputy sheriff testified that he talked with Quade at the scene of the accident and that 'he said he couldn't recall much except that he was traveling west on Highway 15 at approximately forty-five miles an hour and remembers of meeting another car with bright lights and became confused and didn't know exactly where he was at the time of the impact.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Photographs taken about an hour after the collision showed the cars with their fronts severely damaged, the left front of each in contact with the left front of the other; the right rear wheel of the Odya car was on Odya's right hand shoulder; the other wheels were in Odya's own lane, on the pavement, and the car was facing at an angle into the highway; the right rear wheel of the Quade car (license No. C99-513) was in Quade's own lane and the other three wheels were in Odya's lane; the Quade car was facing the Odya car. A deputy sheriff testified that the left front corner of the Odya car was approximately six feet south of the center line. He and another duputy testified there were no skid marks or tire marks and that the debris was under the cars where they came to rest.

Except for the special damage questions answered by the court, the special verdict read as follows:

'Question 1:

'At the time of and just prior to the collision did the defendant, Donald Quade invade the south half of the highway?

'Answer: No. [one dissenting juror]

'Question 2:

'If your answer to Question 1 is 'yes', then answer this question: Was the defendant, Donald Quade, negligent in invading the south half of the highway?

'Question 3:

'If your answers to Questions 1 And 2 are 'yes', then answer this question. Was such negligence on the part of the defendant, Donald Quade, an efficient cause of the collision?

'Question 4:

'At the time of and just prior to the collision was the deceased, Eugene Odya, negligent in the operation or maintenance of his headlamps?

'Answer: Yes.

'Question 5:

'If your answer to Question 4 is 'yes', then answer this question: Was such negligence on the part of the deceased, Eugene Odya, an efficient cause of the collision?

'Answer: Yes.

'Question 6:

'If your answers to Question 3 And Question 5 are 'yes', then answer this question, otherwise do not answer it: Attributing 100% of the negligence to the collision, what percentage of the negligence do you attribute to:

'(a) Donald Quade Answer: 0

'(b) Eugene Odya Answer: 100%

'Question 7:

'Answer this question without regard to how you answered the previous questions: What sum of money will reasonably and fairly compensate the plaintiff, Millicent Odya, for the following:

* * *

* * *

'(b) Pain and suffering?

'Answer: $750.00 [two dissenting jurors]

'(c) Permanent disability.

'Answer: None

'Question 8:

'Answer this question without regard to how you answered the previous questions: What sum of money will reasonably and fairly compensate the defendant, Donald Quade, for the following:

* * *

* * *

'(c) Pain and suffering?

'Answer: $3500.00

'(d) Permanent disability?

'Answer: $18000.00' The record shows that the jury originally returned its verdict with the figure zero as the answer to both subdivisions (b) and (c) of Question 7. After discussion in chambers and objection by plaintiff and the interpleaded defendant to sending the jury back to consider question 7, the court said to the jury: 'I am going to send you back to your jury room and I want you to read question 7 over carefully, and if that is your verdict, let it as it is.' The jury returned after an hour and 27 minutes, having changed the answers so that the verdict read as above set forth.

On motions after verdict, the court filed an opinion which read as follows:

'There is no testimony to sustain the answer to the first question of the special verdict, there is no testimony as to where the accident happened, there were no skid marks or other marks on the pavement, except that the jury might infer from the debris on the south side of the road that the accident happened on the south side of the road. There was also a presumption that the deceased driver of the plaintiff's car acted with due care, and if the Court was to change the answer to the first question from 'no' to 'yes', it would be necessary that the second and third questions of the verdict be answered by the jury. There was testimony that the plaintiff suffered permanent injury yet the jury found no damage.

'The court is of the opinion that the verdict is inconsistent, prejudicial and perverse; and it is, therefore, ordered that the verdict be set aside and a new trial granted.'

On July 12, 1957, the court entered an order granting a new trial 'in the interest of justice for the reasons set forth in the written opinion of the court, which is made a part of this order by reference; because of errors in the trial; because the verdict is contrary to law and the evidence; and because the verdict is perverse and reflects bias and prejudice of the jury.' The same order denied the other motions made by the parties. On July 30, 1957, the court entered an order denying a motion by Quade that it reconsider its order granting a new trial. Quade appealed from both orders.

Plaintiff asked for a review of a number of rulings of the court during the trial and on motions after verdict; interpleaded defendant asked for review of substantially the same rulings and of denial of certain motions for dismissal of the cross-complaint.

Further facts will be referred to in the opinion.

Schober & Radtke, Lowry & Hunter, Willis J. Zick, Waukesha, for appellant.

Richard S. Hippenmeyer, Waukesha, Rosenbaum & Rosenbaum, Milwaukee, for respondents.

FAIRCHILD, Justice.

Appellant asserts that none of the reasons given by the court is sufficient for a new trial. The interpleaded defendant contends that the cross complaint against it should have been dismissed because there is no evidence of causal negligence on the part of Odya. It and the plaintiff contend that in any event there were errors upon the trial which warranted a new trial.

Our analysis of the record leads us to the following conclusions:

(1) The evidence considered in the light of the presumptions applicable to drivers deceased or suffering from retrograde amnesia established that the collision occurred on Odya's side of the center line. There was a presumption that Odya operated plaintiff's car on his own side of the road. There was no evidence tending to show that the Odya car was ever on the wrong side of the road and thus the presumption in his favor remained in force on that issue. There was also a presumption that Quade was on his own side of the road at and just prior to the time of collision during the interval which he could not remember. The position of the cars after the collision was evidence from which the inference that Quade negligently invaded Odya's side of the road could be drawn. Mackowski v. Milwaukee Automobile Mut. Ins. Co., 1957, 275 Wis. 545, 551, 82 N.W.2d 906. Accordingly, the presumption in favor of Quade on this issue dropped out of the case. Atkinson v. Huber, 1955, 268 Wis. 615, 618, 68 N.W.2d 447.

(2) There was a jury question whether Quade was negligent with respect to look out. Quade testified that when he first saw the Odya car, it was about four or five car lengths away from him. This would show that he did not see the Odya car at his earliest opportunity unless the failure to see was adequately explained. The fact that there was a curve and Quade's testimony that there were 'a couple big trees there and a row of mailboxes' did not establish even prima facie that Quade could not have seen the Odya car when the cars were more than four or five car lengths apart and left the issue of lookout unresolved.

(3) There was no substantial jury issue as to Quade's negligence with respect to management and control independent of the question whether he was negligent in being on the wrong side of the road. In view of the short intervening distance when Quade first saw Odya, the only question in the field of management and control was whether he negligently went to the wrong side of the road or negligently remained on the wrong side (if the jury disbelieved his testimony that he was...