Rabata v. Dohner

• Decision Date: 02 December 1969
• Docket Number: 120,Nos. 119,s. 119
• Citation: 45 Wis.2d 111,172 N.W.2d 409
• Parties: David RABATA, Respondent, v. John DOHNER et al., Appellant. Kandy Lee DOHNER et al., Appellants, v. GOVERNMENT EMPLOYEES INS. CO., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 409

172 N.W.2d 409

45 Wis.2d 111

David RABATA, Respondent, v. John DOHNER et al., Appellant.

Kandy Lee DOHNER et al., Appellants, v. GOVERNMENT EMPLOYEES INS. CO., et al., Respondents.

Nos. 119, 120.

Supreme Court of Wisconsin.

Dec. 2, 1969.

On Christmas Day, 1964, a collision occurred between an automobile driven by David R. Rabata, hereinafter referred to as the plaintiff, and an automobile driven by John C. Dohner, hereinafter referred to as the defendant. The case was tried commencing on July 15, 1968. A jury verdict assessed the negligence of the plaintiff at 20 percent and that of the defendant at 80 percent. Judgment was entered on the verdict on October 1, 1968, following a denial of the defendant's motion for a new trial. The defendant Dohner has appealed.

Passengers in the two automobiles and their insurance companies were parties at the time of trial, but the only issue determined was the negligence between the two drivers. Although Rabata was not the plaintiff in all of the actions, nor was Dohner the defendant in all actions, for the purpose of the discussion of the issues between them, they are thus referred to hereinafter.

The accident occurred at the intersection of State Highway 33 and a town road referred to as Old Highway 136, three miles east of Reedsburg. Rabata was going in an easterly direction, and Dohner was proceeding in a westerly direction. It was 5:15 p.m., and it was already dark. The cars collided in the vicinity of the intersection. It was the testimony of Rabata that he intended to proceed straight ahead on Highway 33, and it was the testimony of Dohner that he had intended to make a right turn onto the county road. It is undisputed that the automobiles collided in what was referred to as an off-set head-on collision. By this, it was meant that the left front of the Dohner car collided head-on with the left front of the Rabata car.

Further facts will be found in the opinion.

Aberg, Bell, Blake & Metzner, Madison, Conway & Conway, Baraboo, for appellants.

William H. McEssy, Fond du Lac, Francis R. Bannen, Wisconsin Dells, for respondents.

HEFFERNAN, Justice.

There is really only one issue to be determined. That is, in whose lane the collision occurred.

Rabata testified that Dohner, proceeding from the east, drove his vehicle in a 'baseball curve' that resulted in a collision on Rabata's side of the road. Dohner testified that, although when he first saw Rabata he appeared to be in his proper lane, at the instant before the impact he realized that Rabata had invaded Dohner's lane.

Each of the parties produced witnesses who were admitted experts in the science of accident reconstruction. Professor Archie H. Easton, who was produced by the defendant, testified that the impact occurred in Dohner's lane of traffic. Harold Vik, an engineer and expert produced by the plaintiff, testified that the accident occurred in Rabata's lane.

Basically, the question is one of the credibility of the evidence, and it is obvious that the jury chose to believe Rabata and his expert witness. Were this the only point raised, we would be obliged to say, without further discussion, that this was a jury question and, since the jury has decided the issue adversely to the defendant, this court will not upset a decision based upon credible evidence.

The defendant also attacks the evidentiary standing of the testimony of Rabata and of his witness, Vik. He points out that the testimony of Rabata at the trial differed in important respects from that which he gave earlier at an adverse examination and was, therefore, completely impeached and incredible. He also concludes that the physical facts indicate that the accident could not have occurred in Rabata's lane of traffic and that, hence, the testimony of both Rabata and his expert is incredible. He further objects to Harold Vik's testimony, because he gave his opinion in regard to the point of impact without first being asked a hypothetical question.

Defendant's counsel points out the following discrepancies between the adverse examination and the trial testimony of Rabata. At the adverse examination, Rabata testified he never saw the Dohner car until it was 75 feet away; at trial he testified he saw the car when it was 750 feet away. In his adverse examination, Rabata testified he never saw the Dohner car over the center line; at trial he testified the Dohner car came over the center line in a big curve. In his adverse, Rabata testified the impact occurred in the intersection; at trial he testified it occurred east of the intersection. At the examination, Rabata testified the highway was clear and bare of snow or ice; at trial he testified the center of the road was covered with a ridge of snow.

An examination of the portions of the adverse examination which are incorporated in the record and the trial testimony shows that defendant's counsel is substantially correct in these assertions of discrepancies. It should also be pointed out, however, that there were also serious discrepancies between the defendant's adverse examination and that which he gave at trial.

Counsel for the defendant ably pointed out the internal conflict in the two versions of the accident testified to by Rabata. The jury could not help but be fully aware of the inconsistent evidence. We believe, however, that it is established in Wisconsin that, when conflicting evidence is pointed out to the jury, the weight to be given to the conflict and the determination of which version should be believed is a matter for the finder of fact to resolve.

In the recent case of Ianni v. Grain Dealers Mut. Ins. Co. (1969), 42 Wis.2d 354, 166 N.w.2d 148, Isabelle Ianni, a passenger in the car, stated in a proof-of-loss statement nine months after the accident that the driver of the other vehicle had invaded her husband's lane of travel. At another time, she signed a statement in which she said she was asleep at the time of the accident. Her statements were attacked on the basis that the version of the accident given at trial was incredible and fabricated because of the inconsistency with the earlier statements. We affirmed the jury's finding of negligence, stating:

'The jury may elect to believe the witness-stand account of what happened, and disregard the earlier inconsistent statement of the witness. The jury may choose to believe the truthfulness of the earlier statement, and discount entirely the account presented from the witness stand. The jury may conclude that the inconsistencies revealed in trial and pretrial statements of a witness completely erode his credibility, and give no weight to either statement. To the contention that this gives to the jury a power to pick and choose between conflicting statements, the answer is that such authority is at least in the hands of those who have the opportunity to observe the witness, his demeanor, manner of testifying, hesitancies and similar nuances in speaking. An appellate court has only the cold, hard type of a printed record before it, and is in a poorer position to determine which statement has the ring of truth or whether all statements are to be considered counterfeit.' Ianni, supra, at page 361, 166 N.W.2d at page 151.

In this case, Rabata was skillfully cross-examined by the defense counsel, and his inconsistencies were glaringly revealed, yet the jury apparently chose to believe Rabata's trial version of the accident. Under the rationale of the Ianni Case, this court will not arrogate to itself the power to declare that the trial testimony was incredible as a matter of law and could not be believed.

Defendant also asserts that the testimony of Rabata and his expert witness, Vik, is incredible because the testimony at trial revealed that the debris from the accident was found on Dohner's side of the road. From this testimony, the defendant, Dohner, reasons that the conclusion is inescapable that the accident occurred on Dohner's side of the road. We find no testimony of record that such a conclusion indisputably follows. True, defendant's expert witness, Professor Easton, testified that he, in part, based his conclusion that the accident occurred on Dohner's side of the road from the fact that he had been told the debris had been found there. Harold Vik, the plaintiff's expert, did not base his conclusion upon location of the debris, although he stated that the position of the debris on the road was a factor to be considered in determing the point of impact. We know of no undisputed scientific fact that leads inevitably tot he conclusion that the position of the debris necessarily determines the point of impact.

The Rabata automobile was traveling at a greater speed than Dohner's. This conceivably could account for the debris coming to rest on Dohner's side of the median strip rather than on Rabata's, irrespective of where the impact took palce. We know of no scientific fact of which this court can take judicial notice that supports the contention of the defendant. If such fact exists, it has not been brought to our attention, and it can hardly be said that the defendant's theory is one that must be accepted as a matter of common knowledge.

This case is unlike Strnad v. Co-operative Ins. Mut. (1949), 256 Wis. 261, 40 N.W.2d 552, which is relied upon by the defendant. In that case the physical facts established the testimony of Strnad to be incredible. In the Strnad Case, there were tire marks, gouges in the pavement, and splashes of oil, which, in the eyes of the trial judge and of this court on review, showed conclusively the point of impact and the direction of the Strnad automobile. On the basis of these physical facts, this court concluded that the testimony of Strnad that Meleski invaded Strnad's lane of the road was incredible.

We have no such unequivocal evidence here and are, accordingly, obliged to rely upon the jury's determination of the credibility of the witnesses. The defendant produced Professor...