Steffens v. Del Sievert Trucking, 95-3318

• Decision Date: 21 May 1997
• Docket Number: No. 95-3318,95-3318
• Citation: 568 N.W.2d 651,211 Wis.2d 888
• Parties: NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Ronald C. STEFFENS and Nelda J. Steffens, Plaintiffs-Appellants, v. DEL SIEVERT TRUCKING, INC., David Paskiewicz, Milwaukee Mutual Insurance Company, Super Excavators, Inc., Thomas N. Tenant, Transcontinental Insurance Company and Integrity Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 651

568 N.W.2d 651

211 Wis.2d 888

NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

Ronald C. STEFFENS and Nelda J. Steffens, Plaintiffs-Appellants, v. DEL SIEVERT TRUCKING, INC., David Paskiewicz, Milwaukee Mutual Insurance Company, Super Excavators, Inc., Thomas N. Tenant, Transcontinental Insurance Company and Integrity Mutual Insurance Company, Defendants-Respondents.

No. 95-3318.

Court of Appeals of Wisconsin.

May 21, 1997.

APPEAL from a judgment of the circuit court for Waukesha County: ROBERT G. MAWDSLEY, Judge. Affirmed.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

PER CURIAM.

Ronald C. and Nelda J. Steffens appeal from a judgment dismissing their claims against Del Sievert Trucking, Inc., David Paskiewicz, Super Excavators, Inc., Thomas N. Tenant and their insurers after a jury found Ronald Steffens 100% contributorily negligent for injuries he sustained when a Del Sievert truck ran over him at a construction site. Steffens' appellate arguments focus on the jury instructions and an evidentiary ruling which he contends led the jury to find him solely negligent in the accident. We affirm the judgment.

In September 1993, Steffens was employed as an inspector on a sewer and water main project. Steffens' duties included checking the location of stakes in the ground and spray painting marks on the ground to guide construction of sewer laterals.

While it is undisputed that Steffens was run over by a Del Sievert truck, driven by Paskiewicz, as it backed down the road at the construction site to deliver a load of stone, the parties offered contradictory theories of the accident. Steffens contends he was at the edge of the road when the truck hit him; the defendants contend that he walked backward onto the road and into the truck's path. Although Steffens was unable to testify regarding the specifics of the accident due to amnesia, a witness testified that the right rear corner of the truck struck Steffens in the back while he was walking backward but still at the edge of the road. Steffens contends that the contractor, Super Excavators, its employee, Tenant (who was allegedly assigned to guide the truck down the road), and the truck driver were negligent in not maintaining a lookout for persons in the road. The truck driver testified that just after he swerved to avoid a mailbox, he was signaled to stop the truck and learned he had run over Steffens. Prior to that point the driver did not realize Steffens was in the vicinity.

The defendants contend that Steffens, who admitted he was aware of the hazards present at a construction site, including moving vehicles, did not exercise ordinary care for his own safety when he walked backward onto an active road without looking first. Evidence which supported this theory included: (1) Steffens' testimony that construction site workers working near a road should always walk forward into the road to observe approaching traffic and that the presence of construction vehicles makes it unsafe to walk into the road without looking; (2) Steffens' agreement that it would be hard to overlook a truck backing down the road; (3) Steffens and others testified that the truck driver had a blind spot and could not see Steffens; (4) the truck's backup alarm was sounding and its flashers were blinking while it backed down the road; ¹ (5) the truck driver testified that he twice checked the road before he began backing the truck; and (6) several witnesses testified that Steffens was in the road when he was hit by the truck.

Steffens argues that the court erroneously gave four instructions that were not warranted by the credible evidence: WIS J I--CIVIL 1030 (Right to assume due care by highway users); WIS J I--CIVIL 1095 (Lookout: Pedestrian); WIS J I--CIVIL 1230 (Right of Way: Pedestrian's Duty: Crossing road at point other than crosswalk); and WIS J I--CIVIL 1250 (Right of Way: Pedestrian's Duty: Standing or loitering on highway). Steffens claims that there was no evidence that he was a pedestrian using, crossing or trying to cross the road and that there was no credible evidence that he was on the road when the truck hit him. He contends that these instructions led the jury to find him solely negligent in the accident. The trial court overruled Steffens' objection on the grounds that competing theories of the accident warranted the instructions.

Instructing the jury is within the trial court's discretion; the instructions must have their foundation in evidence adduced at trial. See Wester v. Bruggink, 190 Wis.2d 308, 322, 527 N.W.2d 373, 379 (Ct.App.1994). If there are conflicts in the evidence and inconsistent theories of the cause of the event, "instructions encompassing both theories should be given." Aetna Cas. & Sur. Co. v. Osborne-McMillan Elevator Co., 26 Wis.2d 292, 305, 132 N.W.2d 510, 516 (1965).

Here, there was conflicting evidence and reasonable inferences as to where Steffens was standing when he was hit by the truck, whether he was a pedestrian within the meaning of the jury instructions, and what the actors were doing at the time of the accident. Accordingly, the court was required to instruct on all theories presented. See Fischer v. Ganju, 168 Wis.2d 834, 856 n. 5, 485 N.W.2d 10, 18 (1992).

Steffens next argues that because the truck driver admitted he did not see Steffens and because Tenant was involved in...