Statz v. Pohl
| Decision Date | 02 February 1954 |
| Citation | 62 N.W.2d 556,266 Wis. 23 |
| Parties | STATZ et al. v. POHL et al. POHL, v. STATZ et al. |
| Court | Wisconsin Supreme Court |
This appeal involves two actions brought to recover damages sustained in a collision between automobiles operated by Chris Statz and Charles A. Pohl. The collision occurred on June 4, 1952 on Highways 12 and 13 about a quarter of a mile west of Springfield Corners in Dane County. The first action was commenced on July 14, 1952, by Chris Statz individually and as guardian ad litem for Betty Ann Statz and James Statz against Charles A. Pohl and his insurance carrier. The second was commenced on July 15, 1952 by Charles A. Pohl against Chris Statz and his insurance carrier.
The accident occurred on a straight, level stretch of concrete highway. The pavement was twenty feet wide with a black center line and had gravel shoulders on either side between eight and nine feet wide. Statz was driving east and had with him in the front seat his daughter, Betty Ann, aged ten and in the rear seat his son, Raymond, aged five and his son, James, aged seven. Pohl was also driving east and following Statz. As the two cars entered the straight stretch of road upon which the accident occurred from a curve just northwest of the scene Pohl was travelling at the rate of fifty miles per hour and Statz about thirty to forty miles per hour. Pohl was gaining on Statz and was planning to pass him. When the Pohl car was approximately one hundred feet behind the Statz car and still gaining the boy, Raymond, fell out of the left rear door of the Statz car.
Statz' daughter had observed that Raymond proceeded to turn down the window of the left, rear door of the car for the purpose of throwing out a piece of watermelon rind from which he had been eating. She called her father's attention to it and said to him, 'Raymond is going to fall out'. The door opened and while Statz was watching Raymond hanging to it the boy fell out. Statz saw him fall on the pavement about two or three feet north of the center line of the highway. Statz then turned round and opened his own front door against the wind. He allowed his door to close, put both hands on the wheel and applied his brakes for the first time. He turned his car to the right, applied his brakes and continued forward a distance of from 50 to 75 feet. His car was struck by the Pohl car. The right front of his car was on the right shoulder when the collision occurred.
The foregoing is a recital of some of the testimony given by Statz and is partially contradicted in some respects by Pohl and by the witness Scheel who was also driving east and was about 300 feet behind the Pohl car when the vehicles collided. Pohl testified that he was following Statz at a distance of about a hundred feet intending to pass him when the boy fell out. He applied his brakes partially and saw the Statz car come to an abrupt stop in front of him. He pased the boy lying upon the highway and then swerved slightly to his left. He had regained his position on his right side of the highway when the right front of his vehicle struck the left rear of the Statz car.
Scheel testified that he saw Pohl gain on Statz and that just before the impact it appeared to him that Pohl was crossing the center line to pass, and that the distance from where the boy fell out of the Statz car into the passing line to the point of impact was fifty feet.
The issues were submitted to a jury upon a special verdict which found Statz guilty of causal negligence as to lookout, control, coming to a stop on the traveled portion of the highway and as to control of the actions of his son, Raymond. They exonerated him as to giving an appropriate signal. Pohl was found negligent as to management and control and that such negligence was not a cause of the collision. He was absolved of negligence with respect to lookout and following too closely.
Pohl and his insurance carrier appeal from an order entered on June 5, 1953 setting aside the verdict and granting a new trial.
Aberg, Bell, Blake & Conrad, Carroll Metzner, Madison, for appellants.
McAndrews & Melli, Richard L. Cates, Madison, for respondents.
As we have stated the jury found Pohl negligent only as to control, but that such negligence was not a cause of the accident. But in answer to the question which inquires as to comparative negligence they also found that Pohl's negligence contributed to the cause of the accident to the extent of 20%. The trial court concluded that the verdict is inconsistent and ordered a new trial. Pohl appeals from that order.
It is not possible to reconcile the conflicting views of this court expressed in opinions dealing with the precise question. Bodden v. John H. Detter Coffee Co., 218 Wis. 451, 261 N.W. 209; Forbes v. Forbes, 226 Wis. 477, 277 N.W. 112, among other cases, must be read as a declaration or at least the recognition of the rule that there is no inconsistency in such findings. We consider, however, that we should adhere to our last expressions on the subject. They are contained in Mitchell v. Williams, 258 Wis. 351, 46 N.W.2d 325, and Wojan v. Igl, 259 Wis. 511, 49 N.W.2d 420, in both of which we held that a verdict such as we have to deal with is inconsistent. The jury's findings cannot be reconciled. If we were to hold that there is no inconsistency we should be required to say that one or the other of the findings is surplusage or immaterial. The question would then be presented: which? It is impossible to determine from the record or from any other source that the jury meant what it said in answer to one of the questions and that the answer to the other was thrown in only casually and without regard to the form of the questions and in disregard of the court's instructions.
Counsel for Pohl contend that our previous decisions are reconcilable, and if read in the light of the facts appearing in each they must be construed as a declaration of the rule that if the causal negligence is not established as a matter of law the verdict is not inconsistent. There is nothing in the opinion in either of the two latest expressions of the court, Mitchell v. Williams, supra, and Wojan v. Igl, supra, which can be construed as so limiting the rule. The facts in the instant case are such as warrant a finding of causal negligence on the part of Pohl had one been made. We agree with the learned trial judge:
'Where the evidence is in dispute and where a jury would be warranted in finding causal negligence and fails so to do, and then attempts to answer the comparative negligence question such failure makes the verdict inconsistent and a new trial must be granted, in accordance with the law established in the cases of Mitchell v. Williams, supra, and Wojan v. Igl, supra.'
We consider that it may serve a useful purpose to state the rules to be applied when the question whether findings of a verdict are inconsistent is presented in a situation such as appears here:
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