Seif v. Turowski, 127

• Decision Date: 01 December 1970
• Docket Number: No. 127,127
• Citation: 49 Wis.2d 15,181 N.W.2d 388
• Parties: James SEIF et al., Appellants, v. Norman R. TUROWSKI et al., Respondents.
• Court: Wisconsin Supreme Court

Page 388

181 N.W.2d 388

49 Wis.2d 15

James SEIF et al., Appellants, v. Norman R. TUROWSKI et al., Respondents.

No. 127.

Supreme Court of Wisconsin.

Dec. 1, 1970.

Rehearing Denied Feb. 2, 1971. See 183 N.W.2d 28.

This action was brought to recover damages sustained in a collision between a motorcycle operated by the plaintiff, James Seif, and an automobile operated by the defendant, Norman Turowski. The accident occurred shortly after 9 p.m., on July 17, 1966, on Highway 55 approximately one-half mile south of the intersection of U.S. Highway 10 and Highway 55 in Calumet county.

In this area Highway 55 is a blacktopped, center lined highway. The paved portion of the road is 24 feet wide and there are gravel shoulders approximately eight feet wide on both sides. Proceeding sough on Highway 55 from its intersection with U.S. Highway 10 there is a slight rise in grade for approximately 500 feet and then the road levels out for the next mile. There is no restriction on passing along this segment of the highway.

The plaintiff James Seif was driving north on Highway 55 on a motorcycle, and his wife was riding on the motorcycle in back of him. The defendant Norman Turowski was driving south on Highway 55 after having made a right hand turn at its intersection with U.S. Highway 10. There is some dispute as to how this accident happened.

According to the plaintiffs' testimony, they were proceeding north on Highway 55 at a speed of about 50 to 55 miles per hour when they approached two autos also traveling north in the same lane at a slower speed. Seif decided to pass these autos at a point about five or six-tenths of a mile south of the intersection and pulled out a little to see if anything was coming. He observed the flashing red light at the intersection (which it was later established was on top of a 10 foot pole) but saw nothing else. He sounded his horn and proceeded to pull out and pass the auto immediately ahead of him. As he passed that auto it seemed to accelerate and closed the distance between it and the auto ahead of it. Seif decided to pass the second auto and made another observation to the north but still did not see anything. He sounded his horn again and started to pass the second auto. As he drew alongside the rear end of this second auto he saw the headlights of defendant-Turowski's auto 'pop up all of a sudden' approximately 500 feet in front of him. At this point he was about even with the door on the second auto and determined that it would be too dangerous to attempt to drop back into the small space between the autos he was passing. He had three seconds at the most to take some action. He crowded as closely as he could to the car which he was passing and was in his own lane, about two feet to the right of the center line. At this point he was about even with the front wheel of the auto which he was passing when defendant suddenly verred to the right to avoid the motorcycle, causing an impact between the left rear part of defendant-Turowski's auto and both plaintiffs' left legs. Seif and his wife admitted that as far as they knew the defendant-Turowski's oncoming auto never crossed the center line or invaded the northbound lane.

The defendant-Turowski's version of the accident is as follows: As he was proceeding south on Highway 55 after his turn, he and his wife noticed the lights of a string of vehicles coming toward them which appeared to be about a quarter of a mile away. Turowski continued to observe these lights as he proceeded at a speed of 40 to 50 miles per hour. When his auto was just about next to the first auto in this northbound string of traffic the smaller and 'yellower' light which he had noticed in the northbound lane pulled into the southbound lane and lined up with another set of headlights in the string of traffic. It was only two or three car lengths ahead of his auto when it lined up in this manner. Turowski realized that it was a motorcycle and swerved sharply to his right to avoid it. At no time did Turowski apply his brakes nor deviate his auto from its course until the sharp right turn. His auto was about halfway on the shoulder in a lengthwise direction when the Turowskis heard a bump against the left rear of their auto.

The plaintiffs, James Seif and his wife, Yvonne, brought this action against defendants to recover damages for their personal injuries resulting from the accident, and the defendants counterclaimed for the damage to their auto and for one day's lost wages.

The jury returned a verdict in which it found that the defendant-Turowski was negligent, that his negligence was not a cause but, contrary to instructions, attributed 10 percent of the causal negligence to him. The jury found James Seif negligent, that his negligence was a cause of the accident and attributed 85 percent of the causal negligence to him. The jury further found that Mrs. Seif was causally negligent and attributed five percent of the causal negligence to her.

As part of the motions after verdict, plaintiffs moved for a new trial because the verdict was inconsistent. The court heard arguments on the motions of both parties but did not make any oral or written decision on them. After 60 days had expired judgment was entered on the verdict dismissing plaintiffs' complaint and allowing defendants' counterclaim.

Plaintiffs appeal from the judgment.

Esler & Esler, Kaukauna, for appellants.

Fulton, Menn & Nehs, Appleton, for respondents; Peter S. Nelson, Appleton, of counsel.

BEILFUSS, Justice.

The controlling issue is whether the plaintiffs are entitled to a new trial because the verdict was inconsistent.

As stated above, the plaintiffs did within the statutory period of two months ¹ make and present a motion for a new trial upon the ground that the verdict was inconsistent. The trial court did hear, but did not act upon the motion during the statutory period; the motion for a new trial was therefore deemed overruled. While this court could by virtue of sec. 270.49(1), Stats. direct the trial court to determine the motion, we deem it advisable under the circumstances of this case to examine the merits and decide the issue.

The verdict found that the respondent-defendant, Turowski, was negligent in the operation of his auto but that such negligence was not a cause of the accident. However, it still attributed 10 percent of the causal negligence to him. This clearly appears to fall within the definition of an inconsistent verdict as set forth by this court. Statz v. Pohl (1954), 266 Wis. 23, 62 N.W.2d 556, 63 N.W.2d 711. Also see Hillstead v. Shaw (1967), 34 Wis.2d 643, 150 N.W.2d 313; Callahan v. Van Galder (1958), 3 Wis.2d 654, 89 N.W.2d 210; Veverka v. Metropolitan Casualty Ins. Co. (1957), 2 Wis.2d 8, 85 N.W.2d 782.

The respondents (Turowski and his insurance carrier) first argue that appellants waived the inconsistency by failing to object to it at the time the verdict was returned. In Statz v. Pohl, supra, this court said, 266 Wis. at p. 29, 62 N.W.2d at p. 559:

'Counsel for Pohl contend that by their failure when the verdict was returned to request that the jury be sent back to resolve the inconsistency counsel for Statz waived the inconsistency. It must be conceded that the court would have acted promptly in directing the jury so to act, and that counsel for Statz should have suggested it. But we must now take the verdict as we find it and having concluded that there is an inconsistency, it is proper to ask: What sort of judgment can be entered upon it? * * *.'

Although plaintiffs-appellants could have requested the court to send the jury back to resolve the inconsistency, failure to do so does not necessarily result in a waiver. In those cases where, although the inconsistency is apparent upon the face of the verdict, the resolution of the inconsistency requires an extensive review of the evidence, the matter may well be considered more judiciously in motions after verdict.

Respondents also cite several decisions of this court which have held that an inconsistent verdict may be waived. Their observation as to the holdings of those cases is correct, however, they fail to point out that in all of those cases the parties failed to move for a new trial on the basis of the inconsistent verdicts but raised the question for the first time on appeal. In this case the appellants did timely move for a new trial specifying, among other grounds, the inconsistency contained in the verdict.

Moreover, the defect in question here is not merely in the form of the verdict but...