Schueler v. City of Madison

• Decision Date: 05 February 1971
• Docket Number: Nos. 139,237,s. 139
• Citation: 49 Wis.2d 695,183 N.W.2d 116
• Parties: Donna M. SCHUELER et al., Appellants, v. CITY OF MADISON et al., Respondents (two cases).
• Court: Wisconsin Supreme Court

Page 116

183 N.W.2d 116

49 Wis.2d 695

Donna M. SCHUELER et al., Appellants, v. CITY OF MADISON et al., Respondents (two cases).

Nos. 139, 237.

Supreme Court of Wisconsin.

Feb. 5, 1971.

Rehearing Denied March 30, 1971.

These cases arose out of an automobile-pedestrian collision which occurred near the intersection of North Charter street and University avenue in Madison, Wisconsin. At the time of the accident, University avenue was a paved street 56 feet wide, which ran in a generally east- west direction. The avenue was a one-way street for westbound traffic, except for a single 12-foot wide lane, on the south side, which was reserved for buses and taxicabs traveling in an easterly direction. This lane was separated from the rest of the avenue by a four-foot wide concrete median strip, which ran the length of the street except for intervals at intersections, crosswalks, and driveways. The median strip was six inches high at the center, but tapered to four inches high on the north and south edges to allow a bus approaching from the west to cross over the median strip where necessary to pass another bus stalled in the south lane.

Charter street intersected University avenue in two different places. The 'east leg' of Charter street intersected University avenue from the south and terminated at that point, forming a 'T' intersection. A short distance to the west of that intersection, the 'west leg' of Charter street intersected University avenue from the north, forming another 'T' intersection. There were four crosswalks provided in the area for pedestrians to cross University avenue. One was located on the east and west side of each intersection. Access of vehicular traffic to University avenue from north and south on Charter street was controlled by stop signs located at each intersection. The forward progress of vehicles traveling in an easterly or in a westerly direction on University avenue was not controlled by any traffic signs or signals at the Charter street intersections. There were signs on the north and south edges of University avenue indicating that vehicular traffic was to move one way from east to west on the roadway. There were no signs indicating that the traffic in the south or bus lane moved in the opposite direction.

At approximately 11:55 a.m. on March 1, 1967, Donna Marie Schueler, a nineteen-year-old University of Wisconsin student, set out to cross University avenue. She started out from the north side of University avenue in the crosswalk immediately to the east of the intersection of University avenue and the 'west leg' of Charter street. She looked both ways before stepping off the curb and then proceeded to go straight across the intersection. In the middle of the westbound roadway, she stated that she paused to permit a white truck coming from the east to pass in front of her. Some eyewitnesses testified, however, that they did not recall seeing such a truck. Other witnesses did so testify. She then looked to the east, saw no more approaching vehicles and proceeded across the street. She did not again look to the west. The median strip which separates the bus lane from the rest of the traffic does not extend across the crosswalk in which Donna Schueler stated she was walking. The four-foot width of the median tapers slightly just before it terminates at the east edge of this crosswalk. There is no median strip immediately to the west of this crosswalk. The median strip began again at the west edge of the crosswalk which was on the west side of the intersection of North Charter street and University avenue. Donna Schueler stepped into the bus lane without looking and hit the side of a bus belonging to the Madison Bus Company just as it was passing in front of her from west to east. The bus was 35 feet long, 8 feet wide, and weighed approximately $20,000 pounds. Donna Schueler collided with the bus at a point between the middle of the bus and the front of the rear wheel on the left side of the bus.

The bus had been traveling east in the bus lane prior to the collision and was going 18 to 20 miles per hour at the time of impact, and one witness estimated its speed at 25 plus miles per hour. The bus was coasting as it crossed the intersection. The driver did not see Donna Schueler until the front of his bus had reached the extreme west edge of the median strip to Donna Schueler's left. Then he saw only a 'blur' as she struck the bus. Donna Schueler testified that she was in the crosswalk at the time of the accident. Other witnesses testified that they could not tell whether she was in the crosswalk because the lines were obliterated. No one testified at trial she was not in the crosswalk. One witness, who was crossing University avenue at the 'east leg' of Charter street when the accident occurred, testified that Donna Schueler was between the west edge of the crosswalk and the west end of the median strip. A prior statement of a passenger on the bus that, 'They were not crossing at the crosswalk,' was read into the record after he testified at trial that he could not be sure whether Donna Schueler was in the crosswalk because the lines were obliterated. Sergeant Calvin F. Traver, a City of Madison special investigating police officer, stated that, in his opinion, from talking to eyewitnesses (unnamed) and from examining the physical evidence at the scene, Donna Schueler was not in the crosswalk when the accident occurred. He did not elaborate.

After the collision, the bus driver braked the bus to a stop leaving 17-foot long bloodstained skid marks from the rear left wheels. The marks commenced a few feet east of the east edge of the crosswalk. The impact twirled Donna Schueler to her left, and as she fell in that direction, she was dragged by the bus to approximately the point where the skid marks ended. The bus wheel was on top of her left leg when it stopped, and the bus had to be rolled backward one or two feet so that her leg could be removed. Her left leg was mutilated. She was taken to University Hospitals, where her leg was amputated above the knee that same day.

Donna Schueler and her father, Gerhardt A. Schueler, commenced this action against the City of Madison, the Madison Bus Company, and Transit Casualty Company, the bus company's insurer. The jury trial began in the circuit court for Dane county on January 6, 1969. The jury returned an ultimate fact verdict finding Donna Schueler, the city, and the bus company all causally negligent. The negligence was apportioned as follows: Donna Schueler--50 percent, the city--25 percent, and the bus company--25 percent. Donna Schueler's damages for personal injury were set at $90,000, and her father's damages for medical and other expenses were set at $6,915.

The plaintiffs' motions after verdict were denied, and judgment was entered dismissing the cause of action against the defendants and awarding them costs and disbursements. On August 21, 1969, notice of appeal from the judgment was served upon the defendants.

On May 27, 1970, plaintiffs' substituted attorney served a motion for relief from the judgment under sec. 269.46(1), Stats., alleging that the judgment had been obtained through the mistake, inadvertence, and excusable neglect of plaintiffs' trial attorney. The circuit court entered an order granting defendants' motion to quash on the grounds that the circuit court did not have jurisdiction to rule on plaintiffs' motion since the case had already been appealed to the Supreme Court. Plaintiffs also appealed from this order.

The two appeals were consolidated for argument.

Arthur, Tomlinson & Gillman, Madison, for appellants.

Robert T. Semrad, Principal Asst. City Atty., Edwin Conrad, City Atty., Madison, for respondents.

HEFFERNAN, Justice.

A careful perusal of the 1158 page transcript of this case convinces us that the verdict and judgment should be set aside and a new trial ordered in the interest of justice. Not all the errors that occurred during the course of trial are prejudicial in themselves, and some proceedings that occurred during trial that we conceive to be error were not objected to; but, in the aggregate, we conclude that the totality of several errors so infected the proceedings as

to prejudicially affect the plaintiffs and to require a new

trial.

Was it error to have refused

plaintiffs' request to call the city's

special investigator adversely

The plaintiffs called Sergeant Traver of the Madison police department as its first witness and asked to call him as an adverse witness under sec. 885.14(1), Stats., which provides:

'Any party * * * or his or its * * * employe * * * may be examined upon the trial as if under cross-examination, at the instance of any adverse party.'

It is clear that, under the plain meaning of the statute, Sergeant Traver was an employee of the city, a party-defendant adverse to the plaintiffs. The trial judge ruled, however, that the statute was not applicable. He stated that the negligence claimed against the city referred to that of the department of traffic engineering, a function with which the police officer had nothing to do. He said the fact that another branch of the city was involved would not affect the testimony of the officer--that 'he is clearly not an adverse witness insofar as how the accident happened.' Later he referred to the officer as 'an independent witness.'

In the trial judge's opinion following motions after verdict, he stated, 'Sergeant Traver offered no testimony which had any bearing on the City's liability in this lawsuit.' We cannot agree with this rationale. It appears that, at the point of the trial when this decision was made, the judge attempted to separate the liability of the city from that of the bus company. He reasoned, that, because the testimony of the officer was ostensibly relevant only to the collision of the bus and the pedestrian, no interest of the city adverse to the plaintiffs was thereby involved. However,...