Spindler v. Chilson

• Decision Date: 18 November 1986
• Citation: Spindler v. Chilson, 401 N.W.2d 27, 135 Wis.2d 543 (Wis. App. 1986)
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. HUBERT F. SPINDLER, Plaintiff-Appellant, v. RALPH CHILSON, DEAN TRAYNOR, and ECONOMY FIRE AND CASUALTY CO., Defendants-Respondents. 86-0257.
• Court: Wisconsin Court of Appeals

Page 27

401 N.W.2d 27

135 Wis.2d 543

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

HUBERT F. SPINDLER, Plaintiff-Appellant, v.RALPH CHILSON, DEAN TRAYNOR, and ECONOMY FIRE AND CASUALTY CO., Defendants-Respondents.

86-0257.

Court of Appeals of Wisconsin.

Nov. 18, 1986.

Circuit Court, Pierce County

Affirmed

Appeal from a judgment of the circuit court for Pierce county: Robert W. Wing, Judge.

Before CANE, P.J., LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Hubert Spindler appeals a judgment dismissing his claim for personal injury damages sustained when his truck collided with Ralph Chilson's car.A jury found Chilson 37-1/2% negligent, while Spindler's contributory negligence was assessed at 62-1/2%.The jury awarded Spindler no damages, although the parties stipulated to a finding of $1,626.29 for past medical expenses.Spindler contends that the jury's verdict on negligence was not supported by credible evidence, that the trial court erred by refusing the 'emergency doctrine' instruction, and that the jury's refusal to award damages was perverse.We affirm.

Prior to the collision, Spindler was driving north on State Highway 183 at a speed of forty-five to fifty miles per hour.Spindler's flatbed truck collided with Chilson's automobile at the intersection of 183 and County Trunk G. Highway 183 is a narrow, hilly road.County Trunk G intersects from the west on a hillcrest.This 'T' intersection is marked with a stop sign for eastbound traffic on G entering 183.A cornfield lies at the southwest corner of the intersection.

Spindler testified that he was very familiar with the intersection of 183 and G. Spindler stated that on the day of the accident, his view of the intersection was blocked by the hill's grade and the cornfield.He stated that while on a hillcrest to the south of the intersection, he momentarily saw Chilson's vehicle located well back on G, heading east.Spindler quickly lost sight of Chilson's vehicle but did not slow his speed.After he initially sighted Chilson well back on G, he did not see Chilson again until Chilson was turning onto the highway thirty to forty feet ahead of him.Spindler was driving a two-ton truck and carrying a four-ton tractor on the flatbed.

Chilson claims to have stopped his vehicle at the stop sign.Since he did not have a clear view of cross-traffic due to the cornfield, he said he pulled partway onto the highway to look farther.He gave conflicting testimony whether he then actually looked to his right again.He said he proceeded slowly and had almost fully completed his left turn onto 183 headed north in his proper lane of travel when the vehicles collided in the northbound lane about four or five feet north of the center of the intersection.

When Spindler saw Chilson pulling onto 183 directly in front of him, he braked and veered right to avoid hitting Chilson.The vehicles made contact, however, and Spindler's truck rolled over into the ditch.Chilson's car, a two-door sedan, was scraped immediately behind the passenger door window.

Spindler first argues that the jury apportionment of negligence was not supported by credible evidence at trial.Ordinarily, a comparison of negligence is for the jury.Ide v. Wamser, 22 Wis.2d 325, 331, 126 N.W.2d 59, 62(1964).We will sustain a jury's apportionment of negligence if there is any credible evidence to support it.Sabinasz v. Milwaukee & Suburban Transport Corp., 71 Wis.2d 218, 222, 238 N.W.2d 99, 101(1976).We must look for credible evidence to uphold the jury's verdict, Meurer v. ITT General Controls, 90 Wis.2d 438, 450, 280 N.W.2d 156, 162(1979), and will not search the record on appeal for evidence to sustain a verdict that the jury could have but did not reach.Fehring v. Republic Insurance Co., 118 Wis.2d 299, 306, 347 N.W.2d 595, 598(1984).This is particularly true when, as here, the verdict has trial court approval.Id. at 305, 347 N.W.2d at 598.

There is authority that recognizes the special dignity afforded to one who is traveling on an arterial.Ide, 22 Wis.2d at 331, 126 N.W.2d at 62.'In order to expedite traffic, the law permits drivers on arterial highways to proceed uninterruptedly at a lawful rate of speed with the assumption that other drivers approaching the arterial will yield to them.'Id.

Notwithstanding the policy considerations that operate in favor of a driver on an arterial highway, it remains the responsibility of such driver to exercise reasonable care.Id.In Ide, 22 Wis.2d at 332, 126 N.W.2d at 62-63, the supreme court sustained a verdict finding the driver on the arterial 54% negligent as to speed and management and control.

Given the trial testimony, the jury could have determined that Spindler was more causally negligent in his failure to appropriately reduce his speed in response to the poor visibility along 183 than was Chilson in his failure to keep an adequate lookout for traffic on the through highway.^1..The testimony concerning Spindler's knowledge of the hazards, Chilson's slow entry onto the arterial, and the fact that the collision occurred after Chilson had almost completed his turn, constituted some credible evidence from which the jury could conclude that Spindler should have slowed his speed earlier than he did.

Spindler next contends that the trial court erred by refusing to give the 'emergency doctrine' instruction, Wis JI--Civil 1015 (1981), Negligence in an Emergency.^2..We disagree.The emergency doctrine relieves a driver of liability for his action or inaction when faced with an emergency to which his conduct did not contribute.Application of the emergency rule requires that (1)the party seeking to benefit from the rule must be free from negligence contributing to the creation of the emergency, (2) the time element in which action is required must be short enough to preclude deliberate and intelligent choice of action, and (3) the element of negligence being inquired into must relate to management and control.Hoeft v. Friedel, 70 Wis.2d 1022, 1030, 235 N.W.2d 918, 922(1975).

Here, the evidence indicates that management and control was not at issue.No management and control instruction was given or requested.Rather, Chilson argued throughout the trial that Spindler was contributorily negligent in failing to appropriately reduce his speed.We note that speed may at times overlap with management and control.The distinction between the two elements of negligence was discussed by Justice Currie in a concurring opinion in Schroeder v. Kuntz, 263 Wis. 590, 595, 58 N.W.2d 445, 448(1953)(Currie, J., concurring):

[F]ailure of the operator to reduce his speed to the extent necessary to enable him to stop within the distance he can see ahead because of obstruction of vision due to blinding lights of an approaching car, smoke, fog, etc., before any vehicle or obstruction is sighted by him in his lane of travel, presents an issue of negligence as to speed and not as to management and control.On the other hand, once the operator sights a stopped or slowly moving vehicle obstructing his lane of travel ahead, failure to timely and adequately apply his brakes, or to turn sharply to the...