Sentell v. Higby

• Decision Date: 22 November 1978
• Docket Number: No. 77-789,77-789
• Citation: 273 N.W.2d 780,87 Wis.2d 44
• Parties: Candace SENTELL, Plaintiff-Appellant, v. Mark P. HIGBY and American Family Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 780

273 N.W.2d 780

87 Wis.2d 44

Candace SENTELL, Plaintiff-Appellant, v. Mark P. HIGBY and American Family Mutual Insurance Company Defendants-Respondents.

No. 77-789.

Court of Appeals of Wisconsin.

Argued Sept. 27, 1978.

Opinion Filed Nov. 22, 1978.

L. E. Sheehan, La Crosse, for plaintiff-appellant; Moen, Sheehan, Meyer & Henke, Ltd., La Crosse, on brief.

Robert D. Johns, Jr., La Crosse, for defendants-respondents; Johns, Flaherty & Gillette, S. C., La Crosse, on brief.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

BABLITCH, Judge.

This is an appeal from a judgment of the circuit court for La Crosse County granting judgment in favor of the defendants and dismissing the plaintiff's complaint. The action was commenced by Candace Sentell to recover for injuries sustained as the result of a collision occurring when the defendant Mark Higby's car struck the rear end of the parked car in which Sentell was a passenger. By special verdict, the jury found that Higby was not negligent in the operation of his automobile, and assessed Sentell's damages at $19,680.20. The trial court denied Sentell's alternative motions after verdict to change answers on the question of Higby's negligence or to order a new trial, and granted a motion for judgment on the verdict. Sentell seeks a new trial in the interest of justice, pursuant to sec. 752.35, Stats. ¹

The collision occurred shortly after 2 a. m. on June 4, 1974, on Fourth Street in the City of La Crosse. Fourth Street is a four lane, one-way, northbound street. The two center lanes are traffic lanes, and the two outer lanes are parking lanes. Sentell was one of three persons in the front seat of a car owned by Leo Klug, sitting partially on the right bucket seat and partially on the console. Klug was to her left in the driver's seat, and another passenger was on her right. Klug had parked the car in the west or left parking lane, with its motor running, to await the arrival of a friend in another car who would follow the Klug vehicle to a restaurant some distance away. The three expected their friend to approach along King Street, which intersects Fourth Street at right angles some 50 to 60 feet to the south of the Klug vehicle's location, and to turn left onto Fourth Street behind them. It was raining, and the pavement was wet.

Just prior to the collision, Klug was watching for the friend's approach in the rear view mirror, and Sentell was turned partially around to her left looking directly out the rear window. The Higby vehicle was proceeding north on Fourth Street in the east or right-hand traffic lane. Higby, Sentell, and Klug were the only eyewitnesses to the accident.

Klug testified that as he observed the Higby car approach, it swerved back and forth from one lane to another until it crashed into his car. Sentell testified that the first time she observed the car some distance away, it appeared to be changing from the right to left traffic lanes, and that when she turned back a moment later she saw it closer and swerving. Higby testified that just as he was approaching the intersection of Fourth and King Streets at a speed of about 20 miles per hour, a third car suddenly appeared on his right, turning right onto Fourth Street from King Street directly in front of him. He said he veered to the left to avoid it, fishtailed, lost control, and ultimately struck the rear of the Klug car. Both Klug and Sentell testified that they saw no other car than Higby's prior to the collision.

The impact of the collision pushed the Klug car forward 15 to 20 feet. The Higby car came to a stop an undetermined distance ahead of the Klug car. Sentell was thrown partially into the back seat, injuring her neck and shoulders. Doctors testified that she would have some degree of permanent pain as a result of her injuries.

Higby testified that he had been at a bar from 9:30 or 10 p. m. until closing time at 2 a. m., and had consumed "up to possibly ten beers." Sentell, Klug, and the friend who arrived at the scene moments after the collision all testified that Higby's speech was slurred and that his walk was unsteady. Sentell testified that he appeared intoxicated.

Klug testified that the first thing Higby said after the accident was "Don't call the police, it's my fault. I've got insurance, I'll take care of it." Higby did not deny this. Police officers called to the scene testified that Higby did not tell them of any third car, nor give any explanation as to the cause of the accident.

The trial court, with no objection from Sentell, gave the "emergency instruction." ² The only question submitted to the jury was whether at and immediately prior to the time of the accident the defendant was negligent in the operation of his vehicle. No separate question as to the existence of the alleged third car, nor of the comparative negligence of its driver, was presented though they had been requested by counsel for Higby and his insurance carrier. ³

Sec. 752.35, Stats., governing this court's discretionary reversal powers, is identical to present sec. 751.06, and substantially identical to former sec. 251.09, both relating to the exercise of these powers by the supreme court. Under the construction of the latter statutes by the supreme court, which we accept as a binding construction of sec. 752.35, a new trial in the interest of justice should not be granted unless the reviewing court is convinced, on the record as a whole, that there has been a probable miscarriage of justice. Rodenbeck v. American Mut. Liability Ins. Co., 52 Wis.2d 682, 686, 190 N.W.2d 917 (1971); Puls v. St. Vincent Hospital, 36 Wis.2d 679, 693, 154 N.W.2d 308 (1967); Savina v. Wisconsin Gas Co., 36 Wis.2d 694, 704, 154 N.W.2d 237 (1967).

If a probable miscarriage of justice is apparent, however, this court may grant a new trial even where appropriate objections have not been made, sec. 752.35, Stats.; LaTender v. State, 77 Wis.2d 383, 393, 253 N.W.2d 221 (1977); Weggeman v. Seven-Up Bottling Co., 5 Wis.2d 503, 517, 93 N.W.2d 467, 94 N.W.2d 645 (1958); Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 518, 80 N.W.2d 380 (1957), and even though a new trial could not be granted on the grounds that the verdict is unsupported by any credible evidence or is contrary to the evidence. Markey v. Hauck, 73 Wis.2d 165, 171, 242 N.W.2d 914 (1976); First Wisconsin Land Corp. v. Bechtel Corp., 70 Wis.2d 455, 462, 235 N.W.2d 288 (1975). The question for this court is whether the evidence and the law are such that the plaintiff "probably should have won and should therefore be given another chance." Savina v. Wisconsin Gas Co., 36 Wis.2d at 704, 154 N.W.2d at 241; Lock v. State, 31 Wis.2d 110, 118, 142 N.W.2d 183 (1966); Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis.2d 105, 119, 124 N.W.2d 73 (1963).

From the record as a whole, we are convinced that the verdict finding Higby free of negligence is against the great weight and clear preponderance of the evidence, and that the real issues in the case have not been fully tried. The fact that Higby's automobile collided with the rear end of a parked car, thus causing Sentell's injuries, is not in dispute. The only evidence that Higby was not negligent in the management and control of his vehicle is his own testimony that a third car, seen by him alone, ran a stop sign as he approached the intersection of King and Fourth Streets, and forced him to lose control and crash into the rear of the Klug vehicle, propelling it some 15 to 20 feet forward, despite the fact that he had been going only 20 miles per hour ⁴ before the appearance of the alleged third car and that he had braked thereafter.

But for Higby's testimony, the facts would warrant a finding by the trial court that he was negligent as a matter of law. Corning v. Dec Aviation Corp., 50 Wis.2d 441, 444, 184 N.W.2d 152 (1971); Bunkfeldt v. Country Mut. Ins. Co., 29 Wis.2d 179, 183, 138 N.W.2d 271 (1965); Goldenberg v. Daane, 13 Wis.2d 98, 104, 108 N.W.2d 187 (1961). Over against this testimony is the evidence that Higby had been drinking steadily for at least four hours; the testimony of three witnesses that he moved and spoke as though intoxicated; the uncontroverted testimony of Klug that Higby admitted complete fault immediately after the accident and requested that the police not be called; Higby's failure to mention to anyone on the night of the accident even in answering questions of investigating police officers the existence of the alleged third car; and the testimony of both Sentell and Klug, who had been watching the intersection more or less constantly prior to the collision, that they saw no other vehicle on the road.

Before a party is entitled to the benefits of the emergency doctrine, his conduct must be free from negligence which contributed to the creation of the emergency. Cords v. Anderson, 80 Wis.2d 525, 546, 259 N.W.2d 672 (1977); Kinsman v. Panek, 40 Wis.2d 408, 415, 162 N.W.2d 27 (1968). Before the jury could properly have weighed the question whether defendant's actions contributed to the emergency, it must have first determined that an emergency in fact existed. Higby's claim that the alleged third car created the emergency, and thus freed him of liability to the plaintiff, is an affirmative defense, so designated by him in the pleadings, which he had the burden of proving. Corning v. Dec Aviation Corp., 50 Wis.2d at 444, 184 N.W.2d 152; Voigt v. Voigt, 22 Wis.2d 573, 584, 126 N.W.2d 543 (1964). This claim was denied by Sentell and her witnesses, and was a material fact at issue.

In refusing Higby's request for separate verdict questions as to the existence of the third car and the negligence of its driver, the trial court apparently reasoned that there was insufficient evidence to warrant the same. ⁵ Sentell, who did not join the request, cannot now claim that this refusal constitutes reversible error. She argues however that the giving of the emergency instruction, coupled with...