Rodenkirch v. Johnson

Decision Date02 February 1960
Citation9 Wis.2d 245,101 N.W.2d 83
PartiesRussell RODENKIRCH, Respondent, v. Gordon JOHNSON et al., Appellants. Gordon JOHNSON, Appellant, v. Russell RODENKIRCH et al., Respondents.
CourtWisconsin Supreme Court

McLeod, Donohue & Colwin, Fond du Lac, for appellants.

Ray T. McCann, Milwaukee, Schloemer, Stoltz & Merriam, Robert J. Stoltz, West Bend, for respondent Russell Rodenkirch.

Holden & Schlosser, John R. Holden, Arthur J. Olsen, Sheboygan, for respondents Russell Rodenkirch and Heritage Mut. Ins. Co.

HALLOWS, Justice.

The issues presented are: 1. Did the trial court err in holding as a matter of law that respondent was not negligent as to speed? Did the court err in holding as a matter of law that the appellant was negligent as to lookout? 3. Did the trial court abuse its discretion in granting a new trial in the interest of justice?

1. Respondent's negligence as to speed: The appellant contends there is sufficient credible evidence to sustain the jury's finding, while the respondent claims any inference as to the speed of the respondent drawn from the physical facts is based on conjecture and speculation. This court has consistently held that when there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury's finding, neither the trial court nor this court should change the jury's finding. Maccaux v. Princl, 1958, 3 Wis.2d 44, 87 N.W.2d 772; Kanzenbach v. S. C. Johnson & Son, Inc., 1956, 273 Wis. 621, 79 N.W.2d 249. In reviewing a verdict of the jury on appeal, the evidence should be reviewed and considered from the standpoint most favorable to support the verdict. Ruid v. Davis, 1959, 8 Wis.2d 288, 99 N.W.2d 129; Henthorn v. M. G. C. Corp., 1957, 1 Wis.2d 180, 83 N.W.2d 759. If there is no credible evidence from which a jury reasonably could infer an ultimate fact of negligence, then such finding would necessarily be in the realm of conjecture and speculation. A jury cannot base its findings on conjecture or speculation. Larson v. Splett, 1954, 267 Wis. 473, 480, 66 N.W.2d 181; Hyer v. Janesville, 1898, 101 Wis. 371, 376, 77 N.W. 729. The question is whether the physical facts constitute such credible evidence from which a reasonable inference could be drawn by the jury that the respondent was negligent as to speed, or whether such an inference would be in the realm of speculation.

It appears from the record that the appellant and his wife had spent the evening at a neighborhood tavern and were on their way home. They were proceeding north on Highway W at a speed of 20 to 25 miles per hour when they approached the incline some 800 feet south of the intersection. The appellant does not remember anything about the accident thereafter. Earlier in the evening the respondent and his passengers had attended a basketball game and had stopped at a tavern at Mt. Calvary. They were on their way home at the time of the accident. The respondent suffered amnesia and does not remember the accident or the events immediately preceding it. The speed limit in the area was 25 miles per hour. The entire front and part of the left side of respondent's car were damaged extensively. The appellant's car was also severely damaged in front and on the right. Several photographs of the damaged cars are in evidence.

There was a gouge mark in the west lane of the highway near the center line and south of the intersection which a police officer testified was the approximate point of impact. After the impact the Johnson car, facing south, was 65 feet 9 inches south from this gouge mark. The Rodenkirch car was some 36 feet from the gouge mark, facing north. It is obvious that both cars were spun around by the impact and faced the opposite direction from which they were proceeding. The appellant sustained severe personal injuries consisting of a fractured skull, jaw, right elbow, pelvis, hip and ankle, a ruptured bladder, and permanent injury to his right knee. He was hospitalized seventy-five days. The respondent also sustained personal injuries which hospitalized him some two weeks. A resident living close to the intersection testified he was suddently awakened by a very loud noise.

Negligence as to speed may reasonably be inferred from physical facts which may be sufficient to overcome the presumption of due care afforded a deceased person or one suffering from amnesia. This principle was applied in respect to the position of vehicles on the highway at the time of impact. Evjen v. Packer City Transit Line, Wis., 100 N.W.2d 580. In the case of Haase v. Employers Mut. Liabilility Ins. Co., 1947, 250 Wis. 422, 27 N.W.2d 468, this problem was discussed and the rule applied to lookout and speed. This court held a causally negligent speed could be reasonably inferred and deemed established by the physical facts that after skidding 45 feet on a dry cement pavement the car struck another car with such speed and force that it drove the frame members to within 13 inches of each other, ripped the left door off its hinges, tore off about one third of the top, caused other major damages, and forced it at least 52 feet across the intersection and into the ditch. It is true in the Haase case, supra, that the cars were approaching at right angles, but that fact does not preclude the application of the rule to cars approaching from opposite directions.

Here the right side of the appellant's car and the left side of the respondent's car were both damaged. The jury could draw an inference that the appellant was turning left as he intended. In the Haase case, supra, the inference from the physical facts was so strong that this court stated a jury could consider incredible the testimony of a witness of a 35-mile per hour speed. Great speed was inferred from the physical facts of damage to the cars and from the serious injuries to the occupants in Rubach v. Prahl, 1926, 190 Wis. 421, 209 N.W. 670. In Mackowski v. Milwaukee Automobile Mut. Ins. Co., 1957, 275 Wis. 545, at page 551, 82 N.W.2d 906, 909, this court said: 'The inference of terrific speed at the point of collision was supported by photographs in the record showing an extraordinary degree of demolition of the two cars, and thus evidencing exceptional force of impact.' Physical facts disclosed by the photographs and other evidence overcame the presumption of due cars and established negligence in Reichert v. Rex Accessories Co., 1938, 228 Wis. 425, 279 N.W. 645.

The jury could reasonably conclude the speed of the respondent was great and in excess of 25 miles per hour from the physical facts and other testimony, especially that the appellant's car was forced backward over 65 feet, spun around in the opposite direction, and practically demolished; the respondent's car continued beyond the apparent point of impact some 35 feet in its direct line of force, was turned around, and was extensively damaged; and four people were killed outright and two seriously injured.

The respondent also contends that even if the respondent was negligent as to speed it could not as a matter of law be causal relying on Clark v. McCarthy, 1933, 210 Wis. 631, 246 N.W. 326, for the proposition that speed as an item of negligence is not causal and would not, standing alone, sustain the verdict. Respondent also relies on Strnad v. Co-operative Insurance Mutual, 1949, 256 Wis. 261, 40 N.W.2d 552; New Amsterdam Cas. Co. v. Farmers M. A. Ins. Co., 1959, 5 Wis.2d 646, 94 N.W.2d 175; and Kleckner v. Great American Indemnity Co., 1950, 257 Wis. 574, 44 N.W.2d 560. The statement in the Strnad case, supra, and quoted in the New Amsterdam case, supra, as to the slight probative value of the positions and condition of cars after an accident was made in reference to the issue concerning the position of the cars on the highway immediately prior to the accident. These cases held such evidence was not conclusive. In the Strnad case, supra, the inference was at variance with the oral testimony; and in the New Amsterdam case, supra, different inferences could reasonably have been drawn from the physical facts. In the Kleckner case, supra, it was said that physical facts, unless irrefutably established and permitted only one deduction, would not destroy the probative value of oral testimony. These cases do not control the instant case. The doctrine of the Clark case, supra, is clarified in Jewell v. Schmidt, 19...

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