Schmiedeck v. Gerard

• Decision Date: 01 April 1969
• Docket Number: No. 149,149
• Citation: 166 N.W.2d 136,42 Wis.2d 135
• Parties: Carol SCHMIEDECK et al., Appellants, v. Frank GERARD et al., Respondents.
• Court: Wisconsin Supreme Court

Page 136

166 N.W.2d 136

42 Wis.2d 135

Carol SCHMIEDECK et al., Appellants, v. Frank GERARD et al., Respondents.

No. 149.

Supreme Court of Wisconsin.

April 1, 1969.

Burton A. Strnad, Milwaukee, for appellants.

Giffin, Simarski, Goodrich & Brennan, Milwaukee, James P. Brennan, Milwaukee, of counsel, for respondents.

WILKIE, Justice.

There is no question about Gerard's overwhelming responsibility for this accident. In an effort to win a new trial, plaintiffs raise several issues alleging prejudicial error by the trial court. They are:

1. Did the trial court err in submitting to the jury the question of Carol Schmiedeck's negligence as to lookout?

2. Did the trial court commit prejudicial error by refusing to permit plaintiffs' counsel to argue regarding the number of feet per second defendant Gerard's automobile traveled at a given speed and the amount of time it took it to travel a specified distance at a given speed?

3. Did the trial court err in refusing to give the absent-witness instruction in view of defendants' failure to call Gerard's brother?

4. Were the damages awarded to Carol Schmiedeck inadequate?

5. Did the testimony regarding the injury to Mrs. Schmiedeck's coccyx adversely affect the damage award?

Carol Schmeideck's Lookout.

Due to the location of the store building on the northwest corner of the intersection and the soda truck parked approximately five feet to the north of the stop sign on the northwest corner of the intersection, plaintiffs contend Carol Schmiedeck was unable to see Gerard's car until it had passed the soda truck.

A person proceeding with the right of way on an arterial highway has a right to assume that others approaching on intersecting highways will stop before entering the intersection. ¹ But the operator of the vehicle having the right of way on the arterial must still maintain a proper lookout. ²

We conclude that a jury question as to negligent lookout on Carol Schmiedeck's part was presented. She told the police officer at the scene of the accident that 'All of a sudden something white came real fast from the left and hit me.' She testified that she did not actually see the car she collided with but just saw a streak of lightning coming at her seconds before the collision. Later she testified she did not see anything in the intersection before the collision. Thus, a jury question was raised as to Carol's alleged negligent lookout to determine whether, had she maintained a more efficient lookout, she could have taken some evasive action to avoid the collision.

Plaintiffs argue the Carol was confronted by an emergency as a matter of law. The availability of the claim of an existing emergency negativing acts of alleged negligence does not apply when the negligent conduct complained of is negligent lookout; it applies only when the element of negligence inquired into concerns management and control. ³ There was no question submitted to the jury as to alleged negligent misconduct on the part of Carol as to management and control and thus the emergency doctrine does not apply.

Plaintiffs' Contentions as to Defendant's Speed.

During the course of the trial plaintiffs' counsel requested that the trial court take judicial notice that a vehicle traveling 20 miles per hour would be moving approximately 29 feet per second. The trial court refused to do so.

During final argument to the jury counsel made a similar statement with regard to feet traveled per second. Defendants objected that the comment was improper because there was no such evidence in the record. The trial court sustained the objection. Plaintiffs' counsel then commented to the jury that only a second to a second and one-half elapsed from the time defendant Gerard's automobile was visible to Carol Until the moment of impact. Again the trial court sustained defendants' objection.

Robert Roepke, a motorcycle patrolman for the city of Milwaukee, testified that he took a statement from Lawrence Gerard the brother of defendant Frank Gerard, to the effect that they did not see a stop sign and were going about 25 miles per hour.

As to speed, defendant Frank Gerard testified at one point that he was going 25 as he approached the intersection of the two streets. Later he testified that he was going 20 miles per hour when he entered the intersection and at the moment of impact.

In Baker v. Herman Mut. Ins. Co., ⁴ concerning an accident in which an automobile collided with a tractor-trailer unit, this court took judicial notice 'of the fact that * * * the truck had a momentum equal to the product of its mass and velocity. 1 Collier's Encyclopedia (1960), 'Analytical Mechanics' p. 587.' ⁵

In Wells v. Dairyland Mut. Ins. Co., ⁶ wherein a witness testified that an automobile was traveling between 40 and 45 miles per hour and that it came to a stop in a distance of 10 to 15 feet, this court stated:

'* * * It is a matter of common knowledge that it is a physical impossibility to bring a moving automobile traveling at 40 miles per hour to a stop in a distance of 15 feet under the circumstances which existed here.' ⁷

In Fischer v. Fischer, ⁸ this court took judicial notice of stopping distances as set forth in the Wisconsin's Manual for Motorists (rev.ed. January, 1963). ⁹

Standards applicable to the trial court in taking judicial notice were discussed in Fringer v. Venema. ¹⁰ In that case the trial court, on its own motion, took judicial notice of the fact that a bull old enough to service 15 heifers in a period from May to September was at least six months old at the time of the breeding, The trial court did not notify the parties that it had judicially noticed this fact until judgment was rendered. After reviewing various authorities, this court concluded that:

'We subscribe to the rule that the trial court may in its discretion take judicial notice of facts of 'verifiable certainty' either upon its own motion or upon request of a party to the action. If the fact to be noticed is not one of general common knowledge but can be verified to a certainty by reference to competent authoritative sources, and is to be used as an adjudicative as distinguished from a legislative fact, the trial judge or the party requesting judicial notice should notify the parties or the adversary, * * *.' ¹¹

Thus, the court determined that although the facts were proper for judicial notice, the trial court erred in not giving the parties adequate notice to enable them to be heard on the question of verifiable certainty. ¹²

In the present case, the substance of plaintiffs' request was that the trial court take judicial notice of facts necessary to convert miles per hour into feet per second. This is not a complex computation. In fact, in conference the trial court acknowledged that a vehicle traveling 20 miles per hour travels slightly in excess of 20 feet per second.

Nevertheless, the court refused to allow plaintiffs' counsel to argue these facts to the jury.

We conclude that the trial court's refusal to take judicial notice of these facts amounted to an abuse of discretion. But, as we recently stated in Neider v. Spoehr: ¹³

'* * * This court will not reverse unless it clearly appears that the trial court abused its discretion and that the error affected a substantial right of the complaining party and probably affected the result of the trial.'

Defendant Gerard was found 90 percent to blame for this collision. The jury found the plaintiff Carol Schmiedeck negligent as to lookout but apportioned her blame as only 10 percent. It does not appear that the result in this case would have been any different had the trial court ruled differently.

Absent-Witness Instruction.

Lawrence Gerard, defendant Frank Gerard's brother, was a passenger in Frank Gerard's automobile at the time of the accident and was therefore a witness to the accident. The police officer who investigated the accident testified that Lawrence Gerard stated that Frank was traveling at approximately 25 miles per hour at the time of the accident. The defense did not call Lawrence to testify. Frank Gerard testified that his brother was not in court because they both ran a service station and it was necessary for one of them to be there at all times while it was open.

'The general rule is that the failure of a party to call a material witness within his control, or whom it would be more natural for such party to call than the opposing party, raises an inference against such party.' ¹⁴

The Schmiedecks contend that the rule is applicable in this case and that it was error for the trial court to refuse to instruct the jury accordingly.

In Booth v. Frankenstein, ¹⁵ the defendant failed to call two witnesses who had ridden in the car with the deceased. This court concluded that it was error for the trial court to instruct the jury that it could consider as a circumstance against the defendant the failure of defendant to call as witnesses the two persons who had been riding with the deceased. ¹⁶ The opinion states:

'* * * The witnesses were equally available to both parties; neither called them. Although there is room for a very weak inference of fact that the witnesses might have been more friendly to the deceased than they were to the plaintiff, there is no such showing of their relations with deceased as would warrant an inference against defendant that could not be drawn against the plaintiff.' ¹⁷

In commenting on the general rule regarding the failure to call a material witness, this court in Feldstein v. Harrington ¹⁸ stated:

'* * * This rule was recognized in Booth v. Frankenstein * * * but there held not to be applicable. This was because the two persons not called as witnesses in that case were equally available to both parties and there was no more reason why one side should have failed to call them than the other.'

Lawrence Gerard was equally available to either party. He was not under the control of the defendants nor does there appear to be any...