Werner Transp. Co. v. Barts

• Decision Date: 27 March 1973
• Docket Number: 112,Nos. 111,s. 111
• Citation: 57 Wis.2d 714,205 N.W.2d 394
• Parties: WERNER TRANSPORTATION CO. et al., Respondents, v. Arthur W. BARTS et al., Appellants. Rosalind E. RATWIK, Individually and as special Admnx. of the Estate of Bjarne S. Ratwik, Decd., Respondent, v. NATIONAL INDEMNITY CO., a foreign corp., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 394

205 N.W.2d 394

57 Wis.2d 714

WERNER TRANSPORTATION CO. et al., Respondents, v. Arthur W. BARTS et al., Appellants.

Rosalind E. RATWIK, Individually and as special Admnx. of

the Estate of Bjarne S. Ratwik, Decd., Respondent, v. NATIONAL INDEMNITY CO., a foreign corp., et al., Appellants.

Nos. 111, 112.

Supreme Court of Wisconsin.

March 27, 1973.

Lawrence M. Engelhard, Engelhard, Snodgrass & Goerdt, La Crosse, for appellant.

Johns, Flaherty, Harman & Gillette, La Crosse, for Werner Transportation Co., and others.

Vieth & Feldman, Mauston, for Rosalind E. Ratwik.

HEFFERNAN, Justice.

The jury's verdict was based upon testimony that indicated that, at the time of the accident, Barts was either stopped on the highway or proceeding at a very low speed, that his headlights were either not burning at all or were extremely dim, and that the taillights were not functioning.

The trial judge instructed that:

'A safety statute provides that no person shall operate a vehicle upon a highway during hours of darkness unless all headlamps, tail lamps, and clearance lamps with which such vehicle is required to be equipped are lighted, and are reasonably clean and in proper working order at all times.'

The jury was also instructed in regard to the defendant Arthur W. Barts:

'. . . that no person shall drive a motor vehicle at a speed so slow as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.'

In respect to the deceased, Ratwik, the trial judge found that he was negligent as a matter of law. The judge concluded that the facts indisputably showed that Ratwik was negligent with respect to lookout. It was left to the jury, however, to determine whether such negligence was causal; and in the event that the defendant Barts was found negligent, the jury was instructed to make the apportionment between Ratwik and Barts.

Barts did not testify at the trial, but his deposition was read into the record. He testified that he had stopped at New Lisbon, some 17 miles south of the accident scene, at about 8:30 p.m. He stated that he had trouble getting his vehicle started and he needed a boster charge for his battery to get underway. He said, however, that his equipment was in good shape and that he checked his tractor and trailer lights and found them all in operation.

Jack Thompson, Barts' employer, driving another carnival truck, testified that he followed Barts, that Barts was going about 45 miles per hour, and that all of the lights on the vehicle driven by Barts were functioning. However, he passed Barts prior to the accident and did not witness it. Barts also testified that he was traveling about 45 miles per hour when he was struck by the Ratwik vehicle. Contrary to Barts' testimony, there was substantial evidence to show that, just prior to the accident, Barts was either stopped on the highway or traveling at less than 15 miles per hour, that none of his rear lights were burning, and that only one headlight, burning dimly, was perceptible. On the basis of scientific evaluations, an accident reconstruction expert for the plaintiffs testified that the speed differential between the two vehicles was between 41 and 55 miles per hour.

There was convincing testimony that Ratwik's truck was proceeding at less than 55 miles per hour at and prior to the accident. Norman Burt, another truck driver, who was proceeding in the same direction as Ratwik and Barts, stated that he was traveling at a speed of 55 miles per hour and was overtaking the Ratwik vehicle when the collision occurred. Moreover, there was testimony by another driver, who had driven Ratwik's vehicle from Chicago on that very day, that the Ratwik tractor was equipped with a governor which limited the unit's top speed to 55 miles per hour.

The evidence also showed that Ratwik's truck traveled only a very short distance following the impact. The expert testimony indicated that the distance the Barts vehicle traveled following the impact was consistent with the speed of from zero to 15 miles per hour. Gary Peterson, another truck driver, was proceeding north on I--94 when he overtook Barts' truck above five miles south of the scene of the accident. He stated that he did not see the Barts vehicle until he was just behind it, and pulled over at the last moment, narrowly avoiding a collision. He stated that none of the trailer lights on the rear of Barts' vehicle were on, that no reflectors were perceptible, and that, after he passed, he saw that only one of the tractor's headlights was on and that one was burning dimly.

There was overwhelming evidence to show that the electrical system on the Barts' rig was defective. There was evidence that a nail had been forced between one of the battery posts and the electric cable. Barts acknowledged that, because the battery posts had been corroded, he had inserted the nail to tighten the connection. A mechanic testified that, after the accident, he examined the truck's generator and found that it was completely burned out. He believed the cause of the generator failure was a faulty connection at the battery. Defendant's own expert witness testified that the generator on the Barts' truck had probably burned out before the accident. There was expert testimony that, with the generator burned out, the Barts vehicle would have been traveling on battery power alone and that when the battery discharged the spark plugs would misfire and the truck would slow down and eventually stop. After the accident one of the truck drivers on the scene attempted to start the Barts vehicle but found that the battery was dead and none of the lights was functioning. Upon inspecting the wiring to the trailer lights, he found improper splicing in several places, missing insulation, and sticks and twigs that had been inserted between wires and the frame to keep the electrical system from short-circuiting. While there was testimony that, on the next day, the trailer lights could be turned on, there was expert testimony that a battery in that interval could spontaneously regenerate sufficiently to power the lights.

Under this state of facts, which could have been believed by the jury, the negligence of Barts was proved by overwhelming evidence. While Barts in his deposition gave some testimony to the contrary, his deposition was replete with gross contradictions and some of his statements were so clearly inconsistent with the established facts that the judge felt obliged, and properly so, to sua sponte give the falsus in uno instruction to the jury. In the decision on the motion after verdict, the trial judge pointed out that he simply did not believe Barts' testimony. Clearly, there was evidence upon which the jury could find Barts causally negligent.

Additionally, the appellants herein argue that, as a matter of law, Ratwik's negligence was equal to, if not greater than, that of Barts, and they ask for a judgment setting aside the verdict and dismissing the complaint. Alternatively, they argue that the percentages are so grossly disproportionate to the facts underpinning the negligence of the two parties as to warrant a new trial in the interests of justice.

This court has frequently observed that, in the great majority of automobile accident cases, the comparison of negligence is a question for the jury and that only in unusual cases will the apportionment be overturned on appeal. Smith v. St. Paul Fire & Marine Ins. Co. (1973), 56 Wis.2d 752, 755, 203 N.W.2d 34; Maus v. Cook (1961), 15 Wis.2d 203, 206, 207, 112 N.W.2d 589; Niedbalski v. Cuchna (1961), 13 Wis.2d 308, 318, 108 N.W.2d 576. In Vanderkarr v. Bergsma (1969), 43 Wis.2d 556, 563, 168 N.W.2d 880, this court stated that a party seeking to upset a jury's apportionment of negligence has a difficult burden on appeal and listed the limited circumstances in which such an attack will succeed:

"(1) If, as a...