Thoreson v. Milwaukee & Suburban Transport Co., 109

• Decision Date: 09 November 1972
• Docket Number: No. 109,109
• Citation: 56 Wis.2d 231,201 N.W.2d 745
• Parties: Frank Thomas THORESON, a minor, by his guardian ad litem Donald C. Jacobson, Plaintiff-Respondent, and Alverna Buchelt, Plaintiff-Respondent, Cross-Appellant, v. MILWAUKEE & SUBURBAN TRANSPORT COMPANY, Defendant-Appellant, Cross-Respondent.
• Court: Wisconsin Supreme Court

Page 745

201 N.W.2d 745

56 Wis.2d 231

Frank Thomas THORESON, a minor, by his guardian ad litem Donald C. Jacobson, Plaintiff-Respondent, and Alverna Buchelt, Plaintiff-Respondent, Cross-Appellant, v. MILWAUKEE & SUBURBAN TRANSPORT COMPANY, Defendant-Appellant,

Cross-Respondent.

No. 109.

Supreme Court of Wisconsin.

Nov. 9, 1972.

On November 5, 1963, Alverna Buchelt left her 3-year-old son Frank Thomas Thoreson in the living room in her home in Milwaukee, watching television, while she went to a neighbor's home. Little Frank left the house on St. Paul avenue, ran south into the street from in front of a parked car and into the path of an eastbound bus owned by the defendant-appellant Milwaukee & Suburban Transport Company (transport company). Frank received severe brain damage. The jury awarded him $35,000 for pain and suffering and $70,000 for impairment of earning capacity. Frank's mother was awarded $28,000 for past medical expenses and $58,000 for future medical expenses. Causal negligence was apportioned 40 percent to Frank's mother and 60 percent to the transport company's driver. Judgment was entered in favor of Frank for $105,000 and for Frank's mother for 60 percent of her damages, or $51,600. The transport company recovered a judgment against Frank's mother for contribution in the sum of $42,000,--40 percent of the judgment recovered by little Frank. The transport company appeals from the judgment against it and Mrs. Buchelt cross-appeals from the judgment holding her liable for contribution.

Kivett & Kasdorf, Milwaukee (Harold A. Dall and James R. Gass, Milwaukee, of counsel), for defendant-appellant.

Habush, Gillick, Habush, Davis & Murphy, Milwaukee (Robert L. Habush, Milwaukee, of counsel), for plaintiffs-respondents.

HALLOWS, Chief Justice.

Because of the number of errors assigned, they will be stated and discussed seriatim.

I. Jury Instructions.

A. Right of Way.

The transport company claims error in the court's refusal to give an instruction to the effect a statute requires every pedestrian crossing a roadway at any point other than within a marked crosswalk to yield the right of way to all vehicles on the roadway. ¹ The court did give the standard instruction Wis. J I--Civil 1030 on the transport company's right of way. In Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis.2d 499, 117 N.W.2d 666, this court said an autoist may rely on his right of way, but that the reliance has no basis in fact when the autoist sees a child who cannot be held guilty of negligence for yielding the right of way. Consequently, the requested instruction on yielding the right of way is not applicable to children below 7 years of age. ² It is argued Lisowski is bad law because it vitiates the command of sec. 346.25, Stats., requires an autoist to make an instantaneous determination of the age of the pedestrian darting in front of his car, and denies equal protection of the laws by creating a classification for under 7-year-old children. Sec. 346.25, Stats., on yielding the right of way and sec. 891.44, Stats., on presumption of lack of contributory negligence for an infant minor under 7 years must be read together, and sec. 891.44 validly carves out for all practical purposes the application of sec. 346.25 to such children. We think Lisowski was correctly decided, and it has been followed since it was decided. See Mack v. Decker (1964), 24 Wis.2d 219, 128 N.W.2d 455. The language in Kuklinski v. Dibelius (1954), 267 Wis. 378, 66 N.W.2d 169, to the contrary was overruled sub rosa in Lisowski.

B. Lookout.

The transport company argues the evidence created no issue concerning the driver's lookout and therefore the court was in error in giving instructions thereon. ³ The trial court, and we think correctly, considered there was sufficient conflict in the evidence to raise this issue.

C. Speed.

The court gave the reasonable and prudent speed instruction (Wis. J I--Civil 1285) and also instructed on fixed limits (Wis. J I--Civil 1290). The reasonable and prudent speed instruction is based on sec. 346.57(2), Stats., ⁴ and the transport company argues this instruction should be given only when the situations stated in subsec. (3) ⁵ of that section exist. These specific situations necessitate reducing speed. The transport company relies on Greene v. Farmers Mut. Automobile Ins. Co. (1958), 5 Wis.2d 551, 93 N.W.2d 431, but we think this reliance is misplaced. We see no dependent relationship between subsec. (2) and subsec. (3) of sec. 346.57. Subsec. (2) is a general limitation providing for a speed limit not greater than reasonable and prudent speed under existing circumstances. Subsec. (3) is specific and requires a lesser speed than the maximum limit of subsec. (2) under the conditions therein stated, such as while approaching railroad crossings, curbs, hills, and playing school children. While subsec. (2) is related to subsec. (3), it is not confined to the specific conditions stated in subsec. (3), but rather subsec. (3) creates a greater duty in respect to speed than subsec. (2) does.

It is also claimed the instruction was defective because it implied the child Frank was 'on or entering the highway in compliance with legal requirements and using due care.' The instruction states the general standard and it is not a condition precedent to its use that the court find as a matter of law that the child was on the highway in compliance with legal requirements and using due care. That the instruction harmed the transport company is not a reasonable inference; if anything, the effect of this instruction was to aid the transport company because it gave the jury the opportunity to exonerate the transport company's driver because of the action of the child who was legally unable to use due care. See Crowder v. Milwaukee & Suburban Transport Corp. (1968), 39 Wis.2d 499, 159 N.W.2d 723.

D. Absent Witness.

The trial court gave the absent witness instruction (Wis. J I--Civil 410) against the defendant and allowed an argument by plaintiff's counsel on the point. The absent witness was a passenger on the bus but was not listed on the police report. His name and address were made available to the plaintiff about two weeks in advance of trial by the transport company. Apparently the witness was in the courtroom some time during the trial but was not called by the transport company. We think it was error, but not prejudicial on the facts, for the court to give this instruction. The instruction may properly be given when a witness is not called if the witness is material and within the control of the party against whom the instruction is to be given or when it would be more natural for that party to call the witness.

We cannot assume the bus passenger was a material witness; he may or may not have seen the accident. Ballard v. Lumbermens Mut. Casualty Co. (1967), 33 Wis.2d 601, 148 N.W.2d 65. Further, the witness must be material in the sense of being capable of supplying 'information of strong probative value' for the party's case. Dodge v. Dobson (1963), 21 Wis.2d 200, 124 N.W.2d 97. The instruction should not be given when the witness' testimony would merely have been cumulative. Failure to call the witness must lead to a 'reasonable conclusion that a party is unwilling to allow the jury to have the full truth.' Ballard v. Lumbermens Mut. Casualty Co., supra. No such conclusion can be drawn where other witnesses give the same testimony the absent witness would have given. The transport company produced two eye witnesses and the testimony of this passenger witness, if he in fact saw the accident, may well have been only cumulative.

We cannot assume the witness was more available to the transport company than to the other parties. The test of availability involves the question of whether it is more natural for one party to call the witness than the other, as, for example, where the witness is the wife of one of them. Carr v. Amusement, Inc. (1970), 47 Wis.2d 368, 177 N.W.2d 388. This court has held it is improper to give the absent-witness instruction when the witness is equally available to both parties. Capello v. Janeczko (1970), 47 Wis.2d 76, 176 N.W.2d 395. A passenger in a bus is not necessarily more available to the driver than any other party; witnesses do not belong to parties. Where a relationship exists between one of the parties and the witness, such as a familial or employer-employee relationship, it may be more natural for one party to call the witness than the other. See Lubner v. Peerless Ins. Co. (1963), 19 Wis.2d 364, 120 N.W.2d 54; Coney v. Milwaukee & Suburban Transport Corp. (1959), 8 Wis.2d 520, 99 N.W.2d 713. But where no such relationship or its equivalent exists, no such inference arises. See Vogt v. S. M. Byrne Construction Co. (1962), 17 Wis.2d 96, 115 N.W.2d 485, 117 N.W.2d 362. We think, contrary to the view of the trial court, that the giving by the transport company of the list of witnesses was sufficient to make this witness equally available. There is no question raised that the transport company misled the plaintiffs by giving a list of witnesses and not calling all of them.

E. Rereading the Instructions.

The trial judge has a right to reinstruct the jury at his discretion if requested by the jury. Olson v. Siordia (1964), 25 Wis.2d 274, 130 N.W.2d 827. Apparently there was an agreement between counsel and the court that it could reinstruct the jury in their absence. But even in the absence of an agreement, the trial court has no duty to summon counsel in order that it may repeat proper instructions. It is the duty of the attorneys to be 'close at hand' while a jury is out if they desire to be present when instructions are repeated. Behling v. Lohman (1966), 30 Wis.2d 519, 141 N.W.2d 203.

But it is claimed the court went beyond the request of the jury. The court gave all the negligence instructions, including the two on speed and the two on lookout, and it is argued...