Although there are many issues raised, only those which are diapositive of the case and some which may again appear on the retrial will be considered.
Coffey argues for reversal on the ground he was confronted with an emergency as a matter of law and the credible evidence is insufficient to support a finding of causal negligence on his part. These arguments require a review of the evidence which under long-established rules must be viewed in light most favorable to support the verdict. Rodsnkirch v. Johnson (1960), 9 Wis.2d 245, 101 N.W.2d 88; Ruid v. Davis (1959), 8 Wis.2d 288, 99 N.W.2d 129; Maus v. Cook (1961), 15 Wis.2d 203, 112 N.W.2d 589. Coffey claimed he
Coffey's passenger, his finance, testified she was dozing and listening to the radio and did not hear a horn or feel the application of brakes before the impact. There were no skid marks left by the Coffey car or any evidence that his car was braked. The impact was in his lane of travel. Coffey had physical defects consisting of an artificial limb on his right leg below the knee, his left ankle had been fused and was partially immobile and his hands were deformed. From this evidence the jury had right to find Coffey drove his car at approximately 55 miles per hour into the intersection without seeing the Prefontaine car and was therefore causally negligent as to lookout.
But Coffey argues he was faced with an emergency as a matter of law because whether Mrs. Prefontaine stopped for the arterial or not, in either case she pulled out in front of him so suddenly as to leave no time, or at the most two seconds, for defensive action; hence, no skid marks. While this inference might be drawn, the jury apparently did not accept this view of the accident although it had
The difficulty with Coffey's argument is that other reasonable inferences as to the existence or nonexistence of an emergency might also be drawn. Coffey might have had as much as six or seven seconds to determine action if he had seen Mrs. Prefontaine stop at the sign, if she did stop. We cannot hold as a matter of law that Coffey had only two seconds in which to take action. In Cook v. Thomas (1964), 25 Wis.2d 467, 471, 131 N.W.2d 299, we said:
"The application of the emergency rule rests upon the psychological fact that the time which elapses between the creation of the danger and the impact is too short under the particular circumstances to allow an intelligent or deliberate choice of action in response to the realization of danger. Prosser, Law of Torts (3d ed.), ch. 5, p. 171, sec. 33; Kaestner v. Milwaukee Automobile Ins. Co. (1948), 254 Wis. 12, 35 N.W.2d 190; Papacosta v. Papacosta (1957), 2 Wis.2d 175, 85 N.W.2d 790; Siegl v. Watson (1923), 181 Wis. 619, 195 N. W. 867; Baird v. Cornelius (1961), 12 Wis.2d 284, 107 N.W.2d 278; Deignan v. New Amsterdam Casualty Co. (1958), 2 Wis.2d 480, 87 N.W.2d 529. This time interval may in some cases be so short that no choice of alternative action can be made. The reaction is practically instinctive or intuitive and as a matter of law there can therefore be no negligence. See Klas v. Fenske (1946), 248 Wis. 534, 22 N.W.2d 596. And, this is so for inaction as well as action. An emergency may exist in a layman's sense, Hoehne v. Mittelstadt (1948), 252 Wis. 170, 31 N.W.2d 150; Roberts v. Knorr (1951), 260 Wis. 288, 50 N.W.2d 374, which requires quick action and thinking upon the part of the driver but the time is not so short as to relieve the actor from exercising ordinary
In Shaw v. Wuttke (1965), 28 Wis.2d 448, 453, 137 N.W.2d 649, we stated:
"Before a party is entitled to the benefits of the emergency doctrine he must be free from negligence which contributed to the creation of the emergency. Cook v. Thomas (1964), 25 Wis.2d 467, 131 N.W.2d 299; Borowske v. Integrity Mut. Ins. Co. (1963), 20 Wis.2d 93, 121 N. W. 287; Baird v. Cornelius (1961), 12 Wis.2d 284, 107 N.W.2d 278; Blasi v. Draft (1960), 12 Wis.2d 14, 106 N.W.2d 307; Deignaa v. New Amsterdam Casualty Co. (1958), 2 Wis.2d 480, 87 N.W.2d 529; Hutzler v. McDonnell (1942), 239 Wis. 568, 2 N.W.2d 207. 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."
There was sufficient credible evidence to sustain finding of causal negligence on Coffey's part and no emergency existed as a matter of law.
At the trial it was apparent Coffey's claim of amnesia was under attack. During the trial Coffey questioned witness for the plaintiff regarding injuries capable of producing amnesia but did not call his own treating physician or explain why he was not called to fortify the claim of amnesia. At the request of the plaintiff the court gave the jury the absent-witness instruction, Wis J I—Civil, Part I, 410.
The doctrine of one's conduct as evidence of a weak cause is well established in the law of evidence and in this state. Professor Wigmore in 2 Wigmore, Evidence (3d ed.), p. 162, sec. 285, States, "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party." He also points out this inference cannot be fairly made except upon certain conditions and is open to explanation by circumstances which make some other hypothesis a more natural inference than the party's fear of exposure. See Swietlik, Hearsay Rule in Wisconsin—Part Two, Vol. 1, No. 3, Wisconsin Continuing Legal Education (1961), pp. 73, 96; 29 Am. Jur. (2d), Evidence, p. 224, sec. 180; Booth v. Frankenstein (1932), 209 Wis. 362, 370, 245 N. W. 191; Shaw v. Wuttke, supra.
Coffey's argument does not concern the accuracy of Wis J I—Civil, Part I, 410 but whether the instruction should have been given at all. We therefore do not pass upon its sufficiency and accuracy as an instruction but we note it refers to "a material fact of the case." Generally the rule is phrased in language of evidence which would properly
We note instruction No. 410 is phrased in terms of "available" witness. Availability is used instead of the phrases "within the control" or "power" which have been used in Wigmore and in our prior cases to express the prerequisite relationship between the party and the witness. The word "availability" must be understood to be used in the limited sense in which "control" or "power" was used as conditions for the application of the doctrine. See Feldstein v. Harrington, supra; 2 Wigmore, Evidence (3d ed.), p. 162, sec. 285; Rudy v. Chicago, M., St. P. & P. R. Co. (1958), 5 Wis.2d 37, 47, 92 N.W.2d 367; Coney v. Milwaukee & Suburban Transport Corp. (1959), 8 Wis.2d 520, 99 N.W.2d 713; Anno. Presumption—Failure to Call Witness, 5 A. L. R. (2d) 893.
We think Coffey's claim of retrograde amnesia is a sufficiently important affirmative fact to warrant application of the doctrine. While the claim of amnesia denied Coffey the advantage or disadvantages of his own
Kuehl argues for reversal on the ground of insufficiency of the evidence of negligence on his part and also of being confronted with an emergency as a matter of law. As we believe there is merit in the first argument, we do not reach the second. Kuehl was found 10 percent negligent by the jury and this finding was sustained by the trial court, which stated in its opinion Kuehl and his wife lacked candor in their testimony, a reasonable inference could be drawn that Kuehl did not sufficiently manage and control his vehicle in the face of an apparent disaster and the speed of the Kuehl automobile at the time it came in contract with the Prefontaine automobile was sufficient to change the direction of the Prefontaine automobile, spin it around and force it back up hill.
We think the trial court was in error. The physical facts do not indicate speed and resulting force on Kuehl's part. The Prefontaine car was not swung around in the impact or forced up a hill. It came to rest about five feet south of the impact and slightly to the east in the general
If Kuehl was 200 feet from the intersection at the time Coffey and the Prefontaine cars collided, he traveled about 100 feet thereafter. If he was 150 feet from the first impact he traveled only 50 feet before the second impact. We think Kuehl's negligence is not dependent upon whether or not his car was stopped or only slowed down at the time of the impact with the Prefontaine car. Kuehl was on an arterial highway driving at a lawful rate of speed. He was on his side of the road. Being on the arterial he still had a duty to maintain a lookout, which he did. See Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis.2d 343, 99 N.W.2d 163. He saw the Coffey and Prefontaine cars when he a 300 or 400 feet from the intersection and in time to stop before arriving
Mrs. Prefontaine claims she stopped for Highway 23 and Kuehl was far enough away that she could cross the highway before the arrived at the intersection. On the basis of this testimony there was no negligence on the part of Kuehl in not stopping his car sooner than he did. True, under Magin v. Bemis, supra, one can be found negligent in the management and control of his car on an arterial highway in not attempting to avoid a collision where the other driver not on the arterial does not yield the right-of-way, but that does not seem to be the case here. Kuehl did react to the situation ahead by slowing down and we think reasonably so. The fact he did not stop sooner or at some other place in the highway so a car skidding down his Lane of traffic out of control would not fortuitously hit him is not negligence. It is argued that perhaps Kuehl was farther from the intersection when he first saw the Prefontaine car and his car had not reached a full stop when the second collision occurred. This argument is hardly substantiated by the record and if it were, it would not sustain a verdict of negligence. Disbelief of Kuehl's story does not create any positive evidence of negligence and leaves only the physical facts which do not per se support the verdict as they did in Evjen v. Packer City Transit Line (1960), 9 Wis.2d 153, 100 N.W.2d 580.
Since a new trial is required and the amount of damages are attacked on appeal, the retrial will be on all
By the Court— The judgment is reversed and a new trial is granted against the defendants other than Erwin F. Kuehl and his insurer Home Mutual Insurance Company.
HANSEN, J., took no part.
"You are instructed that if a party fails to produce the testimony of an available witness as to a material fact of the case, and it would appear naturally in the interest of that party to produce him, and the party fails to give a satisfactory explanation for his failure to produce the witness, you may infer that the evidence which he would give would be unfavorable to the party failing to produce such witness."