Sayen v. Rydzewski

• Decision Date: 21 December 1967
• Docket Number: No. 16064.,16064.
• Citation: 387 F.2d 815
• Parties: Joseph E. SAYEN, Jr., Plaintiff-Appellee, v. Edwin J. RYDZEWSKI and Badger Mutual Insurance Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

387 F.2d 815 (1967)

Joseph E. SAYEN, Jr., Plaintiff-Appellee, v. Edwin J. RYDZEWSKI and Badger Mutual Insurance Company, Defendants-Appellants.

No. 16064.

United States Court of Appeals Seventh Circuit.

December 21, 1967.

Ellis R. Herbon, L. William Staudenmaier, Milwaukee, Wis., for appellants.

Richard J. O'Brien, Houghton, Mich., P. G. McGill, Douglas S. Moodie, Superior, Wis., for appellee.

Before KNOCH, Senior Circuit Judge, and CASTLE and KILEY, Circuit Judges.

KNOCH, Senior Circuit Judge.

Plaintiff-appellee, Joseph E. Sayen, Jr., brought this action against the defendant-appellant, Edwin J. Rydzewski, and his insurer the defendant-appellant, Badger Mutual Insurance Company, to recover damages for personal injuries allegedly the result of negligent operation of his automobile by the defendant-appellant, Edwin J. Rydzewski.

There were a number of conflicts in the testimony concerning the incident out of which the action arose presenting some issues of credibility for the jury.

On Sunday afternoon, about 5:00 p. m., January 21, 1963, the plaintiff was driving his automobile west on United States Highway No. 2, east of Ashland, Wisconsin. At that point, the highway is straight, level, two-lane, asphalt, twenty feet wide, with about nine-foot wide gravel shoulders. It was still light, neither driver had turned on headlights. Plaintiff testified that the road was dry. Another witness said there was a thin layer of ice on the road.

Mr. Rydzewski was leaving the area of Johnson's tavern and filling station on the south side of Highway No. 2. Johnson's tavern has a semi-circular driveway with two exits. The evidence is in dispute as to whether Mr. Rydzewski left by the east or the west exit and as to whether or not he stopped before entering on the highway.

The plaintiff testified that Mr. Rydzewski drove out into his path forcing him onto the north shoulder against three mailbox posts. He said he saw an automobile later identified as the Rydzewski automobile, heading toward the west exit to the highway in a north, northwesterly direction, when he was about fifty feet east of the Johnson driveway, that he applied his own brakes, but, as the Rydzewski car came onto the highway in a north, northwesterly direction, to avoid hitting it, the plaintiff cut his own wheel to the right. As a result of the impact with the mailbox posts, plaintiff's chest struck his steering wheel and his head struck his car door. He became aware of pain in his shoulder and later in his back and right leg.

Mr. Rydzewski testified that he came to a complete stop at the east exit to the highway; saw the plaintiff's car to his right, five hundred to nine hundred feet off; proceeded onto the highway in low gear, making a left-hand turn to get onto the north half of the highway; crossed the center line, shifting into second gear; then stepped on the gas, straightened out, shifted to third gear, and accelerated going west. He said he was on the north half of the road for one hundred feet when he saw the plaintiff's car in his rear view mirror; he saw plaintiff start to pull onto the shoulder. He testified that he recalled saying in a prior adverse examination that the plaintiff's car was about twenty feet behind him then. Plaintiff testified that after he stopped he saw the Rydzewski car slow down and then increase its speed and drive away. Mr. Rydzewski said that the last he saw of plaintiff's car the left front wheel was still on the highway, he heard no impact, accelerated and kept going.

The jurors' verdict indicates that they resolved the credibility issues in favor of the plaintiff. In their special verdict the jurors found that Mr. Rydzewski was causally negligent in the operation of his automobile at the time of the accident, that the plaintiff was also negligent but that his negligence was not a cause of the accident. They accordingly left blank the space for indicating percentages of causal negligence attributable to each party. They also found that plaintiff would be reasonably compensated for his damages by $1,158.56 for medical and hospital expense, $273 for damage to his automobile, $8,000 for loss of earning capacity to the time of trial, $25,000 for loss of earning capacity in the future, and $5,600 for personal injuries.

The defendants contend that it was error for the Trial Judge to deny the defendants' motion to change the answer of the jury from "no" to "yes" in response to the query whether the plaintiff's negligence was a cause of the accident. The jury in this case, unlike the juries in some of the cases on which the defendants rely, did not indicate in what respect the plaintiff was negligent or attribute any percentage of negligence to him. In discussing the cases, the parties assume, with good reason, that the jury thought plaintiff was negligent as to lookout. However, as the plaintiff points out, had the plaintiff seen the Rydzewski car from more than two hundred feet away, he would have seen only an automobile under control of its driver maneuvering in the parking lot of a rural tavern. There would have been no greater warning that the car about to enter onto the highway was not going to stop to allow the passage of the plaintiff who was on the highway traveling at lawful speed. The defendants see an inherent inconsistency in the plaintiff's evidence in that he stated he reduced his speed from about 55 miles per hour to only 40 to 45 miles per hour (at the point where he left the road) after viewing the Rydzewski car approaching the west exit to the highway and applying his brakes. The defendants argue that this was a distance of two hundred feet, that plaintiff ought to have achieved greater reduction in speed if he had been going only 55 miles per hour and that the jury might have found the plaintiff negligent in driving at excessive speed. The defendants also contend that the jury might have found the plaintiff negligent in proper management and control of his vehicle. There is nothing to indicate that the jury did so find. There was considerable evidence of unobstructed view which makes it much more probable that the jury found the plaintiff negligent, as the District Judge stated, in maintaining lookout. The jury's findings had the Trial Court's approval. Maus v. Cook, 15 Wis.2d 203, 206, 112 N.W.2d 589 (1961), holds that our inquiry should be limited to ascertaining whether there is credible evidence that under any reasonable view supports the jury's findings.

As the Trial Judge said in ruling on the motion to alter the verdict:

And the Court believes, as the Plaintiff suggests here, that the most plausible explanation would be a view on the part of the jury that Plaintiff Sayen may have been negligent as to lookout and that the Plaintiff should have become aware of Rydzewski\'s presence and movements at a point earlier in time than the Plaintiff did become aware of them, but that, accepting the Plaintiff\'s basic explanation of the accident, the Plaintiff, even had he seen Rydzewski earlier, had a right to rely on Rydzewski\'s granting him the right of way.

As the defendants themselves assert, the test is whether such negligence as found was a substantial factor in producing the accident. Pfeifer v. Standard Gateway Theatre, Inc., 262 Wis. 229, 55 N.W.2d 29, 33 (1952). In the cases cited by the defendants, the negligence was a substantial factor in producing the accident.¹

The defendants characterize as prejudicial error the admission of certain evidence. They see a violation of the hearsay rule in admission of evidence as to plaintiff's premature discharge from the U. S. Coast Guard on the ground of physical disability (with attendant receipt of lower pension, benefits, etc. than he might otherwise have earned). Plaintiff was allowed to testify over objection that he was given a 40% disability rating after examination by the Coast Guard Physical Evaluation Board and to introduce a letter sent him by the Commandant of the Coast Guard informing him of his enforced retirement on that ground. The defendants contend that they were improperly prevented from cross-examining the members of the Board or the Commandant as to the nature of any examination made by them, the sources of their information, etc. in arriving at the 40% figure. However, from the record it is clear that plaintiff never contended he suffered a 40% disability from this accident. His own physician testified to a 20% disability of which only 15% was attributed to the accident here involved. The evidence mentioned above was clearly introduced to show the early termination of plaintiff's Coast Guard career on the basis of physical disability, a fact which defendants evidently do not contest at this time.

The defendants also objected to allowing the plaintiff to testify respecting his income from civilian occupations which he pursued after his discharge on the ground that his books and records would have been better evidence of his income and that oral testimony was received in violation of the "best evidence rule." However, the plaintiff was not attempting to prove the contents of a written document, i. e. his books and records, of which the books and records would themselves have been the best evidence. He was testifying to the fact of his income from his own knowledge. Herzig v. Swift & Co., 2 Cir., 1945, 146 F.2d 444, 445-446. Courts do not bar oral proof of a matter merely because it is also provable by a writing. Allen v. W.H.O. Alfalfa Milling Co., 10 Cir., 1959, 272 F.2d 98, 100. As the Court there said, the written proof might have been more persuasive but the question is one of admissibility not weight, adding that if a litigant desires his adversary's books and records to be in evidence, he has ample means readily available under the Federal Rules of Civil Procedure. See also United States v. Alexander, 4 Cir., 1964, 326 F.2d 736, 739, where the Court said that it was now generally recognized that the "best evidence"...