Sabinasz v. Milwaukee & Suburban Transport Corp.

• Decision Date: 03 February 1976
• Docket Number: No. 69,69
• Citation: Sabinasz v. Milwaukee & Suburban Transport Corp., 238 N.W.2d 99, 71 Wis.2d 218 (Wis. 1976)
• Court: Wisconsin Supreme Court
• Parties: Daniel SABINASZ, Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, a Domestic Corporation, Appellant. (1974).

Page 99

238 N.W.2d 99

71 Wis.2d 218

Daniel SABINASZ, Respondent, v. MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, a Domestic Corporation, Appellant.

No. 69 (1974).

Supreme Court of Wisconsin.

Submitted Dec. 2, 1975.

Decided Feb. 3, 1976.

Briefs by: Harold A. Dall, Terrance E. Davczyk, and Kasdorf, Henderson Dall, Lewis & Swietlik, Milwaukee, for appellant.

Brief by: Simarski, Goodrich, Brennan & Stack, Milwaukee, for respondent; Charles W. Collins and Henry G. Piano, Milwaukee, of counsel.

DAY, Justice.

The questions on appeal are whether the evidence was sufficient to support a jury finding of causal negligence on the part of the defendant's bus operator and, secondly, whether the award of $25,000 for personal injuries was excessive.

On May 25, 1970, at approximately 2:00 a.m., the plaintiff Daniel Sabinasz was the sole passenger on a bus operated by the defendant traveling south on South 6th Street at the intersection of West Becher Street in Milwaukee. A collision occurred between the bus and an automobile traveling west on Becher Street, driven by Dennis Burdey. The collision resulted in the death of the bus driver and in serious injuries to the plaintiff. At the intersection, both South 6th Street and Becher Street are 40 feet wide. At this time of night the traffic lights show a blinking yellow signal to vehicles on 6th Street and a blinking red signal to those on Becher Street. The speed limit on both streets is 30 miles per hour. The collision occurred at a point about six feet into the intersection from the north in the left-hand southbound lane. The bus was struck at a point near its front wheel by the front end of the car, crossed Becher Street diagonally and imbedded itself about four feet into the wall of a tavern on the southwest corner, a distance of about 54 feet from the point of impact, causing about $17,000 in damages to the building. Investigating police officers testified that there were no skid marks caused by any attempt to brake the bus.

Testimony at the trial was that from a point on 6th Street ten feet north of the intersection with Becher a driver could see three quarters of a block east on Becher, the direction from which Mr. Burdey was approaching. Mr. Sabinasz testified that at a point a block north of the intersection the speed of the bus was 35 to 40 miles per hour and that the bus did not brake, swerve, or slow down prior to the impact. There was no other testimony as to the speed of the bus or the conduct of the bus driver.

The defendants attempt to discredit Mr. Sabinasz' testimony by emphasizing his admissions that he had consumed three beers in the hour preceding the accident, and that he had told a police officer at the hospital, to which he was conveyed following the accident, that he hadn't seen anything. There was also testimony from an attending physician that Sabinasz had said that he had been 'dozing' at the time of the accident, although Mr. Sabinasz testified that he could recall no such statement, and that the word 'dozing' would have been a poor choice to express his mere 'inattentiveness.' None of the statements attributed to Mr. Sabinasz following the accident are inconsistent with the testimony that he gave at the trial. The testimony of the plaintiff was not rendered incredible by the physical facts surrounding the accident, and the weight to be given to it was a matter for the jury to determine.

Mr. Burdey testified that he had not seen the bus at all before the impact, and that he was traveling 30 to 35 miles per hour at the time of the accident. Police officers testified that Mr. Burdey had said to them that he consumed six or seven drinks of brandy at a tavern during the evening, and was traveling toward his home on Becher, that he had stopped for a light at 5th Street and thought that the light at 6th was green, and that he must have gone through it without stopping.

On the basis of the evidence the jury returned a special verdict finding that Mr. Burdey was 90% causally negligent, and the bus company 10% causally negligent. The trial court affirmed this finding in its decision on motions after verdict. A jury verdict as to the apportionment of negligence will be sustained if there is any credible evidence that under any reasonable view supports the verdict and removes the question from the realm of conjecture. Ernst v. Greenwald (1967), 35 Wis.2d 763, 72--73, 151 N.W.2d 706; Britton v. Hoyt (1974), 63 Wis.2d 688, 693, 218 N.W.2d 274; Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis.2d 286, 290, 128 N.W.2d 400. This court has said that one who seeks to upset a jury's apportionment of negligence has a difficult burden. Werner Transportation Co. v. Barts (1973), 57 Wis.2d 714, 721, 205 N.W.2d 394. In the present case the appellant would have to show that there is such a complete failure of proof that the verdict could only be based upon speculation. Ernst, supra, 35 Wis.2d 763, at 773, 151 N.W.2d 706; Lemberger v. Koehring (1974), 63 Wis.2d 210, 222, 216 N.W.2d 542. We must view the evidence in the light most favorable to the respondent. Valiga v. National Food Co. (1973), 58 Wis.2d 232, 244, 206 N.W.2d 377. This court has often said that it is only necessary to consider the evidence which sustains the jury's verdict. Nietfeldt v. American Mutual Liability Ins. Co. (1975), 67 Wis.2d 79, 84, 226 N.W.2d 418; Valiga, 58 Wis.2d at 242, 206 N.W.2d 377; Kosnar v. J. C. Penney Co. (1959), 6 Wis.2d 238, 240, 94 N.W.2d 642.

In view of testimony concerning the speed of the bus, the visibility three-quarters of a block along the street on which Burdey was approaching, and the failure of the bus to slow down, the jury could reasonably conclude that the bus operator was traveling at an excessive rate of speed and failed to see that Burdey, who was traveling at a substantial rate of speed, was not going to stop, and that the bus driver's conduct constituted negligence. The trial court's instructions defining negligence as to speed and lookout were properly given.

The bus company argues that the bus operator was under no duty to stop or slow down upon approaching the intersection since his vehicle had the right of way. A driver on an arterial highway may assume that a vehicle approaching from a nonarterial highway will obey the law. Lundquist v. Western Casualty & Surety Co. (1966), 30 Wis.2d 159, 163, 140 N.W.2d 241. This does not excuse the driver on the arterial highway from maintaining a proper lookout or relieve him of liability if the jury finds that he failed to do so. Henden v. Passow (1968), 39 Wis.2d 119, 123, 158 N.W.2d 551; Baker v. Herman Mut. Ins. Co. (1962), 17 Wis.2d 597, 602--03, 117 N.W.2d 725. In this case the bus' arterial status did not, as a matter of law, protect the operator from a jury finding of negligence as to lookout. Moreover, the street on which the bus was traveling was not an uncontrolled arterial, but was governed at the Becher Street intersection by...