Sawdey v. Schwenk

• Decision Date: 07 January 1958
• Citation: 69 A.L.R.2d 1256,2 Wis.2d 532,87 N.W.2d 500
• Parties: , 69 A.L.R.2d 1256 Gerald E. SAWDEY, Respondent, v. George H. SCHWENK et al., Appellants.
• Court: Wisconsin Supreme Court

Page 500

87 N.W.2d 500

2 Wis.2d 532, 69 A.L.R.2d 1256

Gerald E. SAWDEY, Respondent, v. George H. SCHWENK et al., Appellants.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Lehner, Lehner & Behling, Oconto Falls, Adolph P. Lehner, Howard N. Lehner, Oconto Falls, of counsel, for appellants.

Jeffris, Mouat, Oestreich, Wood & Cunningham, Louis D. Gage, Jr., Roy E. Berg, Janesville, for respondent.

CURRIE, Justice.

The issues on this appeal are as follows:

(1) Was the plaintiff Sawdey guilty of negligence with respect to speed as a matter of law?

(2) Did the method of submitting to the jury the issues as to damages result in duplication?

(3) Are the damages excessive?

(4) Was Sawdey's negligence at least 50 per cent of the total aggregate negligence of both drivers as a matter of law?

The collision occurred at or near the top of a long hill. Sec. 85.40(2)(b), Stats., 1953, requires that an operator of a motor vehicle shall operate the same 'at an appropriate reduced speed * * * when approaching a hill crest'. It is the contention of counsel for the defendants that Sawdey violated such statutory provision as a matter of law, even though the jury specifically found that Sawdey was not negligent with respect to speed.

The Hilltop Restaurant is located on the north side of the highway at the crest of the aforementioned hill. Schwenk, prior to the accident, had parked his car in the parking area of such restaurant and was in the act of emerging from a private driveway leading from such parking area to Highway 11 when his car was struck by the Sawdey automobile. Schwenk testified as to having seen the approaching Sawdey car at a point where he had stopped his vehicle twelve feet from the highway, and then saw the lights of the approaching Sawdey car 300 to 370 yards to the east. If Schwenk had this distance of clear visibility, so did Sawdey. Sawdey testified that as he neared the top of this hill he met a car coming from the opposite direction and dimmed his lights. Immediately after passing such vehicle Sawdey saw the Schwenk car entering the highway and but 50 feet distant. He estimated his speed to have been 45 to 50 miles per hour at the foot of the hill and from 40 to 45 miles per hour when he first saw the Schwenk car.

This court cannot hold as a matter of law that a speed of 40 to 45 miles per hour going up a hill on a state trunk highway, with the long range of unobstructed vision that was present here, violated sec. 85.40(2)(b), Stats., 1953. There was a stronger case made out for the holding that there was such a violation as a matter of law in Lake to Lake Co-operative v. Andrews, 1953, 264 Wis. 170, 58 N.W.2d 685, but the court there held that the issue nevertheless was one for the jury.

We turn now to the issue of damages. It is the contention of counsel for the defendants that a duplication of damages resulted in submitting to the jury both questions 6(a) and 6(b). However, after carefully considering the instructions of the learned trial court given to the jury with respect to questions 6(a) and 6(b), we are satisfied that such contention is groundless. It is optional with a trial court whether to embrace the element of future wage loss in the same damage question covering future disability, or to submit it separately as was done here.

Attack is also made upon the jury's award of $2,000 damages for future wage loss in answering question 6(b) of the verdict on the ground that the same is excessive. As a result of the collision both of Sawdey's knees struck the dashboard of the car with such force as to leave imprints of his knees therein which are visible on a photograph exhibit. The plaintiff's medical witness testified that in his opinion Sawdey had sustained a permanent disability to the soft tissue of his knees. Percentagewise, such physician estimated this permanent disability to constitute 20 to 25 per cent loss of use of his legs. Such disability has prevented Sawdey from performing some movements necessary in certain occupations for which he was previously fitted, and has forced him to give up his prior employment in the Fisher Body plant. At the time of injury he was forty years of age and had a life expectancy, according to the American Experience Table of Mortality (sec. 314.07, Stats.) of 28.18 years. In view of these facts we do not deem an award of $2,000 for future wage loss to be excessive.

Counsel for the defendants also contend that the award of $2,000 for future medical expenses is excessive, and we agree. This court in Diemel v. Weirich, 1953, 264 Wis. 265, 58 N.W.2d 651, held that no award of damages for future pain and suffering can be upheld which is not supported by expert medical testimony. We deem that the same rule is applicable in the case of an award for future medical expenses.

Sawdey's medical witness, his attending...