Smith v. St. Paul Fire & Marine Ins. Co., 137

• Decision Date: 03 January 1973
• Docket Number: No. 137,137
• Citation: 203 N.W.2d 34,56 Wis.2d 752
• Parties: Kenneth Duane SMITH, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Gerald Thomas Willer, Respondents.
• Court: Wisconsin Supreme Court

Page 34

203 N.W.2d 34

56 Wis.2d 752

Kenneth Duane SMITH, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Gerald Thomas Willer, Respondents.

No. 137.

Supreme Court of Wisconsin.

Jan. 3, 1973.

Steele, Smyth, Klos & Flynn, LaCrosse, for appellant.

Moen, Sheehan & Meyer, LaCrosse, for respondents.

HANLEY, Justice.

Plaintiff seeks a new trial on the following grounds:

1. The apportionment of negligence is contrary to the evidence.

2. The trial court erred in refusing to instruct the jury that the driver of a car approaching an intersection regulated by a flashing red light has a greater duty of lookout than a driver approaching a flashing yellow light.

3. The jury award of $2,000.00 for pain, suffering and disability was inadequate.

4. The trial court erroneously excluded certain medical bills.

5. The trial court erroneously excluded items of future and past wage loss.

6. In the interest of justice.

7. The trial court erred in assessing the cost of a jury, which had to be dismissed, against the plaintiff.

Apportionment of Negligence

The incident occurred about 11:30 P.M. on December 23, 1965 at the intersection of La Crosse Street and West Avenue in the city of La Crosse. La Crosse Street runs in an easterly and westerly direction while West Avenue runs in a northerly and southerly direction. Plaintiff was alone in his car and was proceeding in an easterly direction. The defendant was at the same time proceeding southerly on West Avenue.

The traffic control signals which controlled the intersection at the time of the collision controlled traffic on West Avenue by means of a flashing red light and traffic on La Crosse Street by means of a fiashing yellow light.

The impact occurred in the southwest quadrant of the intersection with the defendant's auto being his in the general area between the right front wheel and the right passenger door.

Plaintiff's first assignment of error is that the jury's verdict is grossly out of line with the facts of the case. In the past, this court has been very reluctant to change the apportionment of negligence determined by the jury.

'In the great majority of automobile accident cases the comparison of negligence is for the jury, and the instances in which a court can rule as a matter of law that the negligence of a plaintiff equaled or exceeded that of a defendant are extremely rare.' Sailing v. Wallestad (1966), 32 Wis.2d 435, 438, 145 N.W.2d 725, 727.

Where the trial court has specifically approved the apportionment of negligence when it ruled on motions after verdict as was done here, this court's inquiry will be 'limited to the issue whether there is any credible evidence that, under any reasonable view, supports such findings.' Sailing v. Wallestad, supra, at page 439, 145 N.W.2d at 727, and in passing on this issue, the court need only consider such evidence as tends to support the verdict. Seitz v. Seitz (1967), 35 Wis.2d 282, 289, 151 N.W.2d 86.

When the evidence in the present case is so viewed, we cannot, as a matter of law, hold it will not support the verdict. For sometime prior to the accident, it had been snowing and testimony indicates that there was from two to three inches of snow on the ground with road conditions being described as slushy and somewhat slippery. As defendant Willer came to a stop for the flashing red light, the front end of his car was alongside of the light. He testified that when he stopped he looked in both directions. To his left, he noticed a car traveling in a westerly direction on La Crosse Street and that the car was far enough away so as to not cause any danger. From where he was parked, the defendant testified that he could see down to the southwest corner of the next intersection--approximately 200 feet away--and that when he looked in this direction, he was unable to see any approaching car.

After making these observations, defendant began to accelerate, intending to proceed completely through the intersection. It was testified to that as defendant started forward, he again glanced both right and left, and that the only car which he saw was the same one he had earlier noticed traveling west on La Crosse Street. The driver of the west-bound car was James Birnbaum, the only disinterested witness to the accident.

Birnbaum testified that he saw the defendant's car stopped at the red stoplight and saw it start forward to go through the intersection and that he made these observations from a distance of about 75 yards from the intersection. As defendant began to accelerate at a slow and steady pace, Birnbaum testified that the plaintiff's car was in the area of Howie's Bar or about from 240 to 150 feet west of the center line of the intersection. According to Birnbaum, he never noticed any attempt on the part of the plaintiff's car to slow or stop nor did he notice the plaintiff's head-lights dip, indicating that the brakes had not been applied until just before the collision.

The posted speed limit for La Crosse Street is 25 miles per hour and about four or five blocks away from the intersection, plaintiff noted that he was going 30 miles an hour and took his foot off the gas to slow his speed to between 20 and 25 miles per hour. There was testimony that the plaintiff did not look at the speedometer after he let up on the accelerator while doing 30 miles per hour. Plaintiff further testified that when he entered the intersection he slowed, but up to that point had maintained about the same speed of from 20 to 25 miles per hour and that he did not think he could have been going any faster and that he was not going any slower. From the point where he first saw the defendant's car, his speed was such that he could not stop in time to avoid the impact.

Plaintiff here erroneously assumes that the only basis of finding negligence on his part was lookout and that, therefore, the jury apportioning less negligence to Willer on negligence as to lookout and failing to yield the right-of-way, is grossly disproportionate.

On the credible evidence adduced, the jury was entitled to believe that while Willer was negligent as to lookout and right-of-way, the plaintiff Smith was negligent as to speed and lookout.

In the case of Ide v. Wamser (1964), 22 Wis.2d 325, 126 N.W.2d 59, this court refused to tamper with the jury's apportionment of 54 percent of the total negligence to the driver on an arterial highway who was proceeding into an intersection against a flashing yellow light and 44 percent against the driver approaching against the flashing red light. At page 332 of the opinion, 126 N.W.2d at page 62, it was stated that:

'In the instant case, there was evidence from which the jury could infer the Wamser was proceeding too fast for the conditions which prevailed.'

After a review of the evidence as to the plaintiff's speed, the jury in the case at bar could easily have drawn the same inference. The jury could, in apportioning the causal negligence, find that plaintiff's speed was the dominating factor in causing the collision.

We conclude there is credible evidence that, under any reasonable view, supports the jury's findings in the apportionment of causal negligence.

Alleged Error in Instructing Jury

The plaintiff contends that an instruction should have been given that Willer, facing the red light and with the duty to yield the right-of-way, had the additional duty of a greater degree of lookout than did plaintiff, citing as authority therefor Seitz v. Seitz, supra, wherein this court discussed at length the rights and duties of the drivers at an intersection controlled by flashing red and yellow lights, as established by Sec. 346.39, Stats.

The rule in the Seitz case does not establish different standards of care as to lookout per se, but takes into account that both drivers have a duty to maintain an efficient lookout and that in addition, the driver proceeding against the red signal has a duty to yield the right-of-way so that if the negligence as to lookout is equal, then the driver who is to yield the right-of-way is more negligent.

In analyzing plaintiff's argument we must start from the very well established premise that it is the absolute duty of every operator of a motor vehicle to exercise ordinary care to keep a careful lookout ahead and about him to avoid an accident. Brown v. Travelers Ind. Co. (1947), 251 Wis. 188, 192, 28 N.W.2d 306, and the jury was so instructed.

We conclude that the trial court gave the proper instruction to the jury with respect to lookout.

Damages

The jury found that $2,000.00 would compensate the plaintiff for his pain, suffering and disability, past and future, occurring as a result of the accident.

Plaintiff contends the damages awarded are contrary to the credible evidence, are indicative of passion, prejudice and perversity and are inadequate.

The generally rule regarding the...