Zillmer v. Miglautsch

• Decision Date: 30 June 1967
• Citation: 35 Wis.2d 691,151 N.W.2d 741
• Parties: James ZILLMER, by Curtis A. Brendemuehl, his gdn. ad litem, Plaintiff-Respondent, v. Clara MIGLAUTSCH et al., Defendants-Appellants, Hildegard Krohn, a/k/a Mrs. George Krohn et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 741

151 N.W.2d 741

35 Wis.2d 691

James ZILLMER, by Curtis A. Brendemuehl, his gdn. ad litem Plaintiff-Respondent, v. Clara MIGLAUTSCH et al., Defendants-Appellants Hildegard Krohn, a/k/a Mrs. George Krohn et al Defendants-Respondents.

Supreme Court of Wisconsin.

June 30, 1967.

Hoffman, Cannon, McLaughlin & Herbon, Milwaukee, L. William Staudenmaier, Milwaukee, of counsel, for appellants.

Johnson & Brendemuehl, Oconomowoc, for plaintiff-respondent.

Clayton A. Cramer, Waukesha, for defendants-respondents.

HEFFERNAN, Justice.

The retroactivity of the Baierl v. Hinshaw

rejection of the fault verdict

If the rejection of the fault verdict in Baierl v. Hinshaw (1966), 32 Wis.2d 593 146 N.W.2d 433, is prospective only, the trial court herein erred in setting aside the verdict and the questions raised by the appellant in opposition to a new trial need not be decided. We conclude, however, that the position stated by this court in Baierl was merely a statement of the requirements, in the absence of the parties' stipulation, of sec. 270.27, Stats., that have been controlling at least since the amendment to that statute in 1961. We conclude that the trial judge was correct in applying the Baierl

v. Hinshaw rule to this case. Did the court err in

permitting the question of Clare Miglautsch's

negligence to go to the jury?

A case should be taken from the jury and a verdict directed against a party:

"* * * only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonable to permit unbiased and impartial minds to come to but one conclusion." Anderson v. Joint School Dist. (1964), 24 Wis.2d 580, 583, 129 N.W.2d 545, 547, citing Smith v. Pabst (1940), 233 Wis. 489, 288 N.W. 780, and Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N.W. 405.

Also:

'A verdict ought to be directed if, taking into consideration all the facts and circumstances as they appear in evidence, there is but one inference or conclusion that can be reached by a reasonable man.' City of Milwaukee v. Bichel (1967), Wis., 150 N.W.2d 419.

In determining whether or not the trial court was in error in failing to direct the verdict, this court must take that view of the evidence which is most favorable to the party (the plaintiff in this case) against whom the verdict was sought to be directed. Schumacher v. Klabunde (1963), 19 Wis.2d 83, 87, 119 N.W.2d 457; Mueller v. O'Leary (1935), 216 Wis. 585, 587, 257 N.W. 161. If there is any evidence to sustain a defense or a cause of action, the case must be submitted to the jury. Kielich v. Whittaker (1924), 183 Wis. 470, 198 N.W. 270. The weight and sufficiency of the evidence is for the jury (Jolitz v. Fintch (1938), 229 Wis. 256, 261, 282 N.W. 87), as is the weight to be given to the witness' positive or negative testimony. Conrardy v. Sheboygan County (1956), 273 Wis. 78, 82, 76 N.W.2d 560. Furthermore, it is basic that the credibility of the evidence and the inferences to be drawn therefrom are matters for the jury. Braatz v. Continental Casualty Co. (1956), 272 Wis. 479, 487, 76 N.W.2d 303. If there is any evidence other than mere conjecture or incredible evidence to support a contrary verdict, the case must go to the jury. Larson v. Splett (1954), 267 Wis. 473, 66 N.W.2d 181. Incredible evidence is evidence in conflict with the uniform course of nature or with fully established or conceded facts. Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458; Czerniakowski v. National Ice & Coal Co. (1948), 252 Wis. 112, 31 N.W.2d 156.

The stringency of these tests is such that this court has cautioned trial courts against granting motions for directed verdicts in close cases and recommends as the better practice the reservation of a ruling on the motion until after the jury has returned its verdict. Davis v. Skille, supra, 12 Wis.2d p. 490, 107 N.W.2d 458; Rasmussen v. Garthus (1961), 12 Wis.2d 203, 209, 107 N.W.2d 264; Koczka v. Hardware Dealers Mut. Fire Ins. Co. (1966), 29 Wis.2d 395, 399, 138 N.W.2d 737.

Nevertheless, the plaintiff in a tort case does have the burden of proof and, in meeting this burden, he must come forward with evidentiary facts that establish the ultimate facts; and the degree of proof must be such as to remove these ultimate facts from the field of mere speculation and conjecture. Reichert v. Rex Accessories Co. (1938), 228 Wis. 425, 439, 279 N.W. 645; Creamery Package Mfg. Co. v. Industrial Comm. (1933), 211 Wis. 326, 330, 248 N.W. 140. A jury cannot be allowed to merely theorize negligence from what might be a mere possibility. Hyer v. Janesville (1898), 101 Wis. 371, 377, 77 N.W. 729.

The appellant Miglautsch argues two principal points for her position that her motion for a directed verdict or the latter motion for judgment on the verdict should have been granted. She takes the position that there was no credible evidence of record that would have supported a finding of causal negligence and, in addition, Miglautsch was confronted with an emergency not of her own making and, therefore, should be exonerated as a matter of law for any conduct thereupon that was less than the optimum under the circumstances.

However, reviewing the evidence in light of the strict standards set forth above, although conceding that a proper jury verdict finding the appellant free of negligence would be supportable, we cannot conclude that as a matter of law the appellant was free of negligence.

The testimony is clear that the appellant first saw the plaintiff on his bicycle a considerable distance ahead. Although the appellant disclaimed any intention of passing, it is an established fact that she was overtaking him. Just prior to the accident, the boy on the bike was two feet ahead of the Miglautsch vehicle and approximately two-three feet to the right. The appellant saw the door of the parked automobile open and a knee start to appear; and simultaneously the bike swerved to the left into Miglautsch's path. She said that only 'a few seconds' elapsed between the turn and the crash. She testified that she was too 'stunned' to apply her brakes immediately.

Under this state of facts, we conclude that a jury issue in regard to her negligence was presented. The question presented is one of management and control in the manner in which she approached the bicycle from the rear and was about to pass him, for despite her statement that she did not intend to pass, there was evidence that she was going faster than the bicycle. The distance between the car and the bicycle had closed rapidly.

The statutes contained in ch. 346, Stats., Rules of the Road, are relevant to this determination. Sec. 346.02(4) ¹ makes the Rules of the Road generally applicable to bicycles. Sec. 346.07(2) provides:

'The following rules govern the overtaking and passing of vehicles proceeding in the same direction * * *

'The operator of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.'

Thus, it would appear that a jury question was presented of whether Miglautsch was in the act of passing the bicycle and whether the lateral distance that she allowed was safe.

The trial judge also pointed out that if she were not in the act of passing, the question of whether she was following too closely was then presented. Sec. 346.14(1), Stats., provides:

'The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.'

While it appears to be more likely from the testimony that the Miglautsch car was about to pass, rather than just follow, the bicycle, nevertheless, there was testimony from which a jury could have concluded that Miglautsch was following at an unreasonably close distance.

We conclude that there was a jury question in regard to Miglautsch's management and control of her automobile in passing or following the bicycle.

Since a jury question is presented as to whether Miglautsch was negligent in the events that led up to the collision, we cannot say as a matter of law that she should be exonerated from all liability by reason of an unexpected emergency.

This court has said:

'There are three basic requirements which must be met before the emergency doctrine can be applied. First, the party seeking the benefits of the emergency doctrine must be free from negligence which contributed to the creation of the emergency. Second, the time element in which action is required must be short enough to preclude deliberate and intelligent choice of action. Third, the element of negligence being inquired into must concern management and control before the emergency doctrine can apply. Unless a favorable finding on each of these elements is made, the emergency doctrine cannot be applied to a course of conduct which led to an automobile accident.' Geis v. Hirth (1966), 32 Wis.2d 580, 586, 146 N.W.2d 459, 463.

There are at least two occasions when a court should properly submit the emergency question to a jury rather than ruling on it as a matter of law. There should be a jury submission if there is a question of whether the negligence of the party seeking the benefit of the emergency rule contributed to the emergency. We said in Shaw v. Wuttke (1965), 28 Wis.2d 448, 453, 137 N.W.2d 649, 651:

'If there is a factual dispute as to such negligence and assuming the time element is so short as to make the doctrine otherwise applicable, a person is entitled to the emergency-doctrine instruction and it is for the jury to determine its application. Misiewicz v. Waters (1964), 23 Wis.2d 512, 127 N.W.2d 776.'

The second condition under which a jury determination is required as to whether an emergency exists arises when it appears that...