Rowden v. American Family Ins. Co.
| Decision Date | 06 October 1970 |
| Docket Number | No. 195,195 |
| Citation | 179 N.W.2d 900,48 Wis.2d 25 |
| Parties | Ilene ROWDEN, Appellant, v. AMERICAN FAMILY INSURANCE CO., et al., Respondents. |
| Court | Wisconsin Supreme Court |
This is an action growing out of an automobile accident occurring in Milwaukee at about 2:30 a.m. on April 21, 1968, at the intersection of North Third and West Vine streets. Plaintiff-appellant was a passenger in a cab which was struck in the rear by the automobile of the defendant-respondent, Jeanette Watts.
One block away, defendant had stopped for a red light at the intersection of Third and Walnut streets and was at the head of a line of cars in the left northbound lane, proceeding north. The cab in which plaintiff was a passenger stopped to the right of defendant for this light at Third and Walnut, and as the cars proceed north on Third street, the cab remained to defendant's right and slightly behind. As defendant approached the intersection of Third and Vine streets at a speed of between 10 and 20 miles per hour, the cab, at the south crosswalk of the intersection, drew alongside and passed defendant. The cab then crossed over in front of defendant without signaling and the driver applied his brakes while approximately a car length ahead of defendant. Defendant applied her brakes, but her car struck the rear of the cab. Plaintiff was injured in the collision.
She brought suit against defendant and her insurer, American Family Mutual Insurance Company. No action was taken against the cab company or its insurer. The jury found defendant entirely free of negligence, and, upon instruction from the trial court to determine whether the cab driver was negligent, found the cab driver 100 percent negligent. Plaintiff's motions after verdict were denied, and she appeals.
S. A. Schapiro, Milwaukee, for appellant.
deVries, Vlasak & Schallert, Milwaukee, for respondents.
The first issue raised on this appeal is whether it was error for the trial court to instruct as to the emergency doctrine. This alleged error was not raised by plaintiff in her motion for a new trial and for that reason that alleged error is not reviewable as a matter of right on this appeal. 1
While this court might, in its discretion, consider the issue, 2 we find no reason here for so doing. There is no dispute that the cab suddenly changed lanes without signaling and stopped while it was no more than a car length ahead of the defendant. The defendant testified that it took her five seconds, at the most, to apply her brakes. We have held that such an interval presents a jury question. 3 Hence there was no error in instructing the jury as to the emergency doctrine.
Plaintiff-appellant's second issue is whether the trial court erred in refusing to instruct the jury, as requested, as to defendant-respondent's speed.
The testimony of defendant was unrefuted that as she approached the intersection she was traveling at a speed of 10 to 20 miles per hour. There was also testimony that the cab was traveling at a speed of 10 miles per hour as it approached that intersection. Although the speed maintained is not necessarily lawful merely because it is less than the statutory or ordinance limit, 4 there is little, if any, evidence here to justify an instruction on speed.
In any event, this court has said:
'* * * Instructions must be judged as a whole and in connection with the questions in the verdict and unless it can be reasonably said that instructions would probably, not possibly, mislead the jury, prejudicial error should not be found.' 5
In this case the court gave, among others, the following instructions as requested by plaintiff: Instruction No. 1105, Management and Control, and Instruction No. 1112, Operation of Car Following Another. Both of these instructions concern speed as it relates to the particular situation, and in combination cover all of the pertinent conditions raised in testimony: speed, weather conditions and traffic conditions, and in light of the particular facts of this case appear to adequately instruct the jury as to defendant's duty under the circumstances presented. Therefore, the trial court's refusal to give Instruction No. 1285, Speed: Reasonable and Prudent: Reduced Speed, 6 was not error.
The final issue raised by appellant gives us some concern. It is whether there was error in the trial court's communication with the jury in the absence of counsel.
After the jury had deliberated for a time, word was received that the jury had some questions. Plaintiff's counsel was present; defendant's counsel was not.
The judge, court reporter, and the bailiff went to the jury room where the following colloquy took place:
'Miss Olsen: (Juror) If we answer question number one that she was not negligent, question number three that the cab driver was negligent, then what good is answering question number five? (On damages.)
'The Court: You have to answer it anyway.
'Juror: We do it anyway?
'The Court: You must answer the question regardless of how you answer the other one.
'Juror: May I ask another question? Is it permissible to state that they both were negligent?
'The Court: I'd have to reread the instruction to you, I can't say. You must do that from the evidence and from my instructions.
'Juror: Supposing we determined they both were partially negligent?
'The Court: If you can make that determination, that's up to the jury.
'Miss Olsen: Yes we can.
'Which were all the proceedings had in the jury room with the judge and reporter present.)'
Shortly before the jury returned its verdict exonerating the defendant of any negligence, the court had the record of this exchange read in open court with both counsel present and, although plaintiff's counsel objected to the court's communication with the jury in his absence, he did not make a motion for mistrial.
After the verdict was returned and in her motion for a new trial, plaintiff contended that this communication was grounds therefor. In its decision denying this motion, the trial court concluded that plaintiff had waived any objection to this communication, noting that immediately after its initial instructions to the jury, the lawyers were told by the court, on the record:
In its decision denying the plaintiff's motion for a new trial, the trial court stated:
...
To continue reading
Request your trial
-
McGivern v. AMASA Lumber Co.
...79 N.W.2d 797 (1957). See sec. 805.13, Stats.3 Upton v. Tatro, 68 Wis.2d 562, 574, 229 N.W.2d 691 (1975); Rowden v. American Family Ins. Co., 48 Wis.2d 25, 27, 179 N.W.2d 900 (1970); Dawson v. Jost, 35 Wis.2d 644, 649, 151 N.W.2d 717 (1967).4 Rose v. Schantz, 56 Wis.2d 222, 228, 201 N.W.2d ......
-
Rueth v. State
...expressly waived the right to be present. See, for example, Neely v. Woolley, 143 S.W.2d 1015 (Tex.1940); Rowden v. American Family Ins. Co., 48 Wis.2d 25, 179 N.W.2d 900 (1970). Respondents, however, overstate the nature of the waiver. What an absent counsel waives is only his right to be ......
-
Thoreson v. Milwaukee & Suburban Transport Co., 109
...the duties of the bus driver. This is not a case of 'in-person communication,' which was disapproved of in Rowden v. American Family Ins. Co. (1970), 48 Wis.2d 25, 179 N.W.2d 900. II. Loss of Future Earnings. The transport company argues the medical testimony as to future impairment of the ......
-
Ollinger v. Grall
...29 Wis.2d 620, 139 N.W.2d 595.5 Behning v. Star Fireworks Mfg. Co., 57 Wis.2d 183, 203 N.W.2d 655 (1973); Rowden v. American Family Ins. Co., 48 Wis.2d 25, 179 N.W.2d 900 (1970); Menge v. State Farm Mut. Automobile Ins. Co., 41 Wis.2d 578, 164 N.W.2d 495 (1969); Johnson v. Johnson, 37 Wis.2......