Wintersberger v. Pioneer Iron & Metal Co.

• Decision Date: 02 January 1959
• Citation: 6 Wis.2d 69,94 N.W.2d 136
• Parties: Siegfried WINTERSBERGER, by his Guardian ad litem, Robert R. Collins, Plaintiff-Respondent, v. PIONEER IRON AND METAL CO., a corporation, and Great American Indemnity Co., a corporation, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 136

94 N.W.2d 136

6 Wis.2d 69

Siegfried WINTERSBERGER, by his Guardian ad litem, Robert R.

Collins, Plaintiff-Respondent, v. PIONEER IRON AND METAL CO., a corporation, and Great

American Indemnity Co., a corporation,

Defendants-Appellants.

Supreme Court of Wisconsin.

Jan. 2, 1959.

Rehearing Denied March 3, 1959.

Kivett & Kasdorf, Milwaukee, Alan M. Clack, Milwaukee, of counsel, for appellants.

Anderson & Murphy, Milwaukee, for respondent.

HALLOWS, Justice.

The appellant's first contention is that a lack of evidence in support of a jury's answer does not constitute a basis for changing the answer by the court and urges the correct rule is stated in Blohowak v. Grochoski, 1903, 119 Wis. 189, 96 N.W. 551, to the effect that to change the jury's answer in the verdict the finding must be contrary to the undisputed credible evidence. This form of stating the rule has never been repeated by this court since the Blohowak case.

The correct test of the sufficiency of evidence necessary to sustain a jury's answer is whether there is any credible evidence which supports the jury's answer. Home Savings Bank v. Gertenbach, 1955, 270 Wis. 386, 71 N.W.2d 347, 72 N.W.2d 697, and cases cited therein. If there is no credible evidence to sustain a jury's finding or answer the trial judge may and he should change it. Maltby v. Thiel, 1937, 224 Wis. 648, 272 N.W. 848. In La Motte v. Retail Hardware Mut. Fire Ins. Co., 1930, 203 Wis. 41, 233 N.W. 566, this court sustained the trial court for changing an answer in a special verdict where there was no evidence in the record to justify the jury's answer.

Where the evidence established as a matter of law that the negligence of the defendant was a cause of a collision the trial court can properly change the jury's negative answer to the affirmative. Mayr v. Milwaukee & Suburban Transport Corp., 1957, 274 Wis. 616, 80 N.W.2d 761. The trial court concluded in its written opinion that the negligence of the truck driver in making his turn in violation of 85.17(1), stats., was a substantial factor in causing the accident. This was tantamount to stating the evidence as a matter of law established causation. It is immaterial what ground is assigned by the trial court for its ruling if it is in fact correct. Haswell v. Reuter, 1920, 171 Wis. 228, 177 N.W. 8.

The appellant contends there were many inferences available to the jury under the evidence which would support the answer that the negligence of the truck driver in making the turn was not the cause of the accident. From a review of the testimony we do not find any credible evidence which under any reasonable view would allow the jury to infer the negligence of the driver of the truck-trailer in making the right turn from the left lane was not a cause of the collision with the plaintiff.

We are not convinced that there was credible evidence from which the jury could reasonably infer that it was the sudden realization on the part of the plaintiff that the truck, going in his direction, was stopped for a traffic signal which caused the plaintiff to apply his brakes so hard as to go out of control. In view of the testimony of the truck driver and the plaintiff the traffic light was green and the truck and bicycle were not stopped. Likewise there is no credible evidence from which the jury could have reasonably inferred that the plaintiff was aware of the contemplated right turn and ran into the curb in trying to beat that turn.

If reasonable minds would come to only one conclusion that a collision would not have occurred if it had not been brought about by certain acts of negligence the question is one solely of law. Prosser, Law of Torts (2d ed.), p. 281, sec. 50. If the actor's negligent conduct is a substantial factor in bringing about the harm it is a legal cause of that harm. Restatement of the Law, 2 Torts, p. 1159, sec. 431. We conclude that the trial court was correct in its opinion when it stated it was satisfied the negligence of the truck driver in making his turn in violation of 85.17(1), 14 W.S.A., p. 265, was a substantial factor in causing the accident. Had the defendant approached the intersection in the lane required by the law which existed at the time of the accident, the accident could not have happened, or if the defendant had not made a short right turn from the left lane, even at 5 miles an hour after swerving to the left and being at that time 8 to 10 feet past the crosswalk into the intersection, completely blocking the right-hand traffic lane in approximately one second, the accident would not have happened.

The appellant contends the situation is similar to the fact situation in Swinkels v. Wisconsin Michigan Power Co., 1936, 221 Wis. 280, 267 N.W. 1, where the defendant's bus was being operated on the wrong side of the highway and the overtaking plaintiff attempted to pass in the remaining space. The court said the position of the bus on the highway could cause no injury to the plaintiff in the absence of his entering into the dangerous zone alongside of it. Here the plaintiff did not enter a dangerous zone. The defendant cut across his lane of travel, creating the dangerous zone he was in or practically in. The plaintiff did not have any choice as existed in the Swinkels case except to stop, which he tried to do.

The appellant also argues since the right turn was made at 5 miles per hour, rather than more rapidly, it was therefore not contrary to the purpose of sec. 85.17(1), 14 W.S.A., p. 265, and cites in support of his contention Richert v. Rex Accessories Co., 1938, 228 Wis. 425, 279 N.W. 645, and Ramsay v. Biemert, 1934, 216 Wis. 631, 258 N.W. 355. In these cases the court said the purpose was to protect those traveling in the right lane from sudden turns to the right by those traveling in the left lane. This does not mean one cannot be negligent in making a short turn, whether fast or slow, from the left lane across the right lane. A sudden turn can...