Three general questions are presented on this appeal. The first concerns the negligence of each driver
On the night of December 21, 1960, Evansville high school played a basketball game at Cambridge. Among the Evansville youths attending the game were respondent Mary Zweifel, Kenneth Nelson, and Carol Felber, who went in a car driven by appellant Rowley, and Sharon Karroll who rode with Propst. Appellant left Cambridge a short time ahead of Propst after the game. Each traveled through Stoughton and on to Cooksville. After both cars had stopped at an intersection in Cooksville, Propst passed Rowley and pulled some distance ahead. The cars then proceeded south toward Evansville on Tolles road.
Tolles road runs north and south and is straight and blacktopped for several miles outside of Cooksville. It varies in width from 18 to 20 feet with a one-foot gravel shoulder. There is no center line. A few miles south of Cooksville is a slight hill. The Sawtelle farm is situated on the west side of the road at the bottom of the incline. On the east side of Tolles road, about 30 feet south of the Sawtelle driveway and three feet from the edge of the blacktop, was a guidepost marking the location of a culvert running under the road. Some 210 feet south of the guidepost was a driveway to another house (hereinafter tenant house). There was a ditch on the east side of the road which commenced at a point 125 feet north of the Sawtelle driveway and ran into a culvert which was under the tenant-house driveway.
Appellant was traveling about 55 miles an hour as he came over the hill and noticed that he was gradually overtaking Propst who was going about 50 in his own lane. Appellant testified that he sounded his horn when he was about 50 feet behind Propst and then pulled out to pass. He further stated that when the front of his car was approximately even with the rear of Propst's car, the latter veered into the left lane—despite continued blasts on the horn—and forced him onto the shoulder. This occurred at a point 560 feet from the tenant house or 320 feet from the Sawtelle driveway. Appellant says that he elected to continue to make his pass but could not because Propst would not yield. He hit the guidepost and it spun up, broke his windshield, and caused him to lose control of his car. The car dropped into the ditch and kept going until it hit the culvert. Appellant never applied his brakes although respondent testified that she told him to. Rowley's story was substantiated for the most part by his three passengers, but Miss Zweifel thought that he sounded his horn for the first time when Rowley was alongside Propst and Propst began to swerve. There was no actual contact between the cars.
Propst, his passenger Sharon Karroll, and Mrs. Sawtelle all testified that they did not hear Rowley's horn. Propst did not remember deviating from his lane, but said that even if he had, there was still room for a car to pass. Miss Karroll and Propst both testified that Rowley's car was ahead of them when it hit the guidepost and that they saw the post fly over Rowley's car. Propst stopped at the culvert and took the occupants of the car to a doctor in Evansville. Rowley testified that during the trip Propst admitted crossing into the left lane, but this was denied by both Propst and
Both drivers were found causally negligent by the jury. These findings will not be upset if there is any credible evidence which, under any reasonable view, fairly admits of an inference supporting the finding.
Rowley contends that on the facts he could only have been found negligent for failing to give an audible signal, and that the jury could have found him negligent in this respect only if they concluded that he did not sound a timely and audible signal that Propst, being reasonably attentive, could have heard. Citing Kincaide v. Hardware Mut. Casualty Co.
Although the jury could have concluded from all this testimony that Rowley sounded his horn the jury could have
It is clear, therefore, that there was a jury question on whether Rowley gave the required audible signal and there was credible evidence to support a jury finding of negligence in this respect.
Propst admits that there was a jury issue as to whether he invaded the left lane but argues that since the accident occurred after Rowley had actually pulled ahead of him, then any negligence on his part could not be causal. Appellant traveled 560 feet between the time he turned off the road and the time he hit the culvert. The evidence does show that the Propst vehicle was in the right lane and somewhat behind the Rowley vehicle when the latter struck the guidepost and went out of control. And Rowley admittedly chose to accelerate rather than brake as Miss Zweifel requested, in order to complete the pass. Thus, it would have been permissible for the jury to infer that Rowley, having passed Propst, was negligent in the way he managed his vehicle, and that this, and not his failure to signal or Propst's veering, was ultimately the sole cause of the accident. But the jury could also have believed that Propst, having heard Rowley's warning signal, set off the chain of events leading to the collision by forcing the latter off the road, but that Rowley's fateful decision to complete his pass was a more significant factor.
On these facts there was evidence on which the jury could rightfully determine that each driver bore some blame for the
Closing Arguments to the Jury.
Appellant claims that improper argument was made to the jury in several respects. We need not consider whether or not the particular arguments were improper, and if improper, were prejudicial, for the reason that the appellant failed to move for a mistrial before the jury returned its verdict and, therefore, waived any complaint he might have in this regard.
In Kink v. Combs,
In connection with the assertions of appellant with respect to improper arguments by counsel, the return on this appeal includes the transcribed arguments of counsel for both respondents but no part of the argument by counsel for the appellant. Respondents have moved to strike that part of the return that contains their arguments. That motion is
Errors in Evidence and Instructions.
Appellant has numerous complaints in regard to either the introduction or rejection of certain evidence.
First, that it was error to allow respondent Mary Zweifel to testify on direct examination that she went to work
Second, that it was error to refuse to allow written statements taken by a deputy sheriff from respondent and Propst after the accident to be introduced into evidence. Portions of these statements dealt with whether Propst had swerved from his lane. It is true that where a witness does not have an independent recollection of the facts but has to rely on a memorandum to refresh his memory, the notes or written statement may be introduced into evidence as a part of his testimony.
Third, that the trial court erred in not allowing Propst to be impeached with his own unsigned statement. Shortly after the accident Propst gave a statement to appellant's counsel but refused to sign it. Appellant contends that since there is no distinction between oral and written declarations,
Fourth, that the trial court erred in refusing to permit appellant to show that Propst had been instructed by his insurance company not to sign any statements. Since this testimony had no material bearing on any of the issues in the case, it was not error to exclude it.
Fifth, that it was error for Propst's counsel to ask appellant, "[W]hile the doctor was treating you and about a week after the accident, were you in another accident?" Although Propst submits that the question was proper since Rowley had filed a cross complaint for damages for his injuries, and innocuous because there was no reference to Rowley's driving an automobile, it is apparent that this
Sixth, that it was error to refuse to allow Propst to testify whether he reported the accident to his insurance company. Appellant contends that this ruling precluded him from determining whether Propst had ever given a statement to his insurance company. But appellant already knew that there was no such statement. Propst testified on his adverse examination that he didn't recall signing any statement and added at a conference, out of the presence of the jury, that he did not believe he had even made any statement. Propst's counsel denied knowledge of any statement.
Seventh, that it was error not to allow the jury to consider Rowley's hospital report. This record, which was received in evidence, contained the notation "old healed fract of nose with septal deviation" under the "Diagnosis" heading. Sec. 327.25 (2), Stats.,
Appellant contends that the trial court erred in instructing the jury that Propst could operate his vehicle oblivious to traffic behind him until he heard a signal. The jury was told: (1) That the front driver could assume that there was no car to his rear until he becomes aware of the car "by signal or otherwise;" (2) that the front driver was obliged to keep a lookout "to the rear if caution requires;" (3) that the front driver must look to the rear before operating his car in a manner which would create a hazard to the following vehicle; (4) that a driver cannot deviate from his course "until such movement can be made with reasonable safety;" and (5) that before any driver moves to the left on the highway he must "determine the presence, location, distance, and speed of any vehicle that might be affected." A consideration of the instructions as a whole
We have reviewed the entire record of this week-long vigorously contested trial and are of the opinion that justice has been done.
By the Court.—Judgment affirmed with costs. Motion to strike portions of the transcript denied without costs.