Winston v. Weiner

• Decision Date: 07 January 1958
• Parties: Arabella B. WINSTON et al., Plaintiffs-Respondents, v. Charles WEINER, Appellant, Marion Baldwin et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 292

87 N.W.2d 292

2 Wis.2d 584

Arabella B. WINSTON et al., Plaintiffs-Respondents, v. Charles WEINER, Appellant, Marion Baldwin et al.,

Defendants-Respondents.

Supreme Court of Wisconsin.

Jan. 7, 1958.

Heft & Coates, Racine, for appellant.

Godfrey & Godfrey, Elkhorn, for defendants-respondents.

R. Stanley Kelly, Burlington, for plaintiffs-respondents.

Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, of counsel, for respondents.

FAIRCHILD, Justice.

1. Appellant asserts that the trial court erred in failing to submit the question of negligence of defendant Baldwin as to lookout. The court did submit a question as to her negligence with respect to failing to pass Weiner to the right giving him at least one-half of the main traveled portion of the roadway, and a question with respect to management and control. Both questions were answered 'no' by the jury. The record shows that when the form of the special verdict was discussed by court and counsel, appellant's counsel urged submission of the issue of speed but assumed that there would be no question as to lookout. On motions after verdict, the only two grounds for new trial which could be material on this point were failure to include the issue of speed and failure to include 'the questions proposed upon the trial by this defendant, to which exceptions were preserved.' The decision of the court on motions after verdict indicates that the only questions raised as to defendant Baldwin's negligence were whether she was negligent as to management and control as a matter of law and whether the court erred in failing to submit the issue of speed. Appellant does not urge these points on appeal.

Appellant can not, as a matter of right, claim on appeal that the court erred in failing to submit the issue of lookout. Zoellner v. Kaiser, 1941, 237 Wis. 299, 296 N.W. 611. In Wells v. Dairyland Mut. Ins. Co., 1957, 274 Wis. 505, 518, 80 N.W.2d 380, 387, it was said, 'We deem the correct rule to be that no error of the court should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a cagegory that a trial court could correct by granting a new trial.'

Appellant recognizes this rule, but asserts that he should not be bound by it in this instance because the law as announced by this court prior to the trial would have made the submission of the issue of lookout improper and that rule was changed by a decision of this court rendered after the trial and decision on motions after verdict although prior to the entry of judgment herein. In Vogel v. Vetting, 1953, 265 Wis. 19, 60 N.W.2d 399, the court considered a collision in which each driver suffered amnesia. The court applied the presumption of due care and at page 24 stated, 'Therefore, we must presume that each driver looked and saw the other car which was in clear view. There is nothing in the record upon which there could be a finding that either driver was negligent as to lookout.' The court further held that the facts would support an inference that each driver was negligent with respect to management and control. Shortly after the Vogel decision this court decided the case of Weber v. Mayer, 1953, 266 Wis. 241, 63 N.W.2d 318. There the driver, who was killed, stopped for an arterial and then proceeded and was hit by a truck which must have been in plain sight when he entered the intersection. It was held that a jury finding of negligence as to lookout was sustained by reasonable inference. Thus the Weber decision suggested at least that a driver entitled to the presumption of due care by reason of death or amnesia might be found guilty of negligence as to lookout if he behaved as if he did not see. Wells v. Dairyland Mut. Ins. Co., supra, was decided January 7, 1957. It expressly overruled Vogel v. Vetting and stated a rule as follows, 274 Wis. at page 512, 80 N.W.2d at page 384: 'In cases involving a driver, who is unable to testify as to the lookout he maintained immediately prior to a collision because of death or amnesia, he ordinarily cannot be found guilty of causal negligence as to both lookout and management and control. If there is no evidence from which it can reasonably be inferred that he saw the object collided with, then his negligence consists of lookout and not management and control. * * * On the other hand, if there is evidence indicating that such operator did see the object collided with prior to the accident, his negligence lies in the field of management and control, and not lookout.' This rule is based on the proposition that in these cases, 'the mere happening of the accident supports a finding of either causal negligence as to lookout or management and control, but not both.'

Granting that appellant's counsel might have made a request that a question be submitted as to Miss Baldwin's lookout and the court complied had the Wells decision been available, we have examined the record and the verdict to determine whether the interests of justice require a new trial. We think not.

The crucial issue was whether Mr. Weiner, Miss Baldwin, or both failed in their duty to pass to the right. Evidently Weiner's car left his proper lane and crossed in front of the Baldwin car. Only if Miss Baldwin were driving on the wrong side could his conduct be explained as a result of her negligence. The jury decided that Weiner was on the wrong side and Baldwin not. Its finding is not challenged. With that issue resolved, virtually...