ROBERT W. HANSEN, J.
The Wisconsin legislature has provided that "In any action or proceeding brought to the supreme court by appeal ... if it shall appear to that court from the record, that the real controversy has
We follow this statutory authorization in reversing this judgment and remanding this case for a new trial because of two facts or factors in this case, neither one of which, standing alone, would cause us so to do.
The first troubling fact relates to the form of the question put to the jury as to the taillights of the Mackyol truck, to wit:
"Was the defendant, Leslie W. Mackyol, at the time of the collision negligent in any of the following respects:
". . .
"(c) In failing to have his lights burning?"
This question the jury answered in the negative. Respondents' brief states this to be "... jury's finding that the taillights were on and visible for 500 feet in accordance with the instructions of the court...." This interpretation as to what the jury found when it answered the above inquiry is shared by the trial court. In his memorandum opinion, the trial judge states: "In the instant case the jury found ... that the rear lights on the truck were burning; that those lights were visible for 500 feet as Kiggins approached them; ..."
As to the above question 2 (c) in the special verdict inquiring as to whether driver Mackyol was negligent "in failing to have his lights burning," the instruction given was a reading of sec. 347.13, Stats., to the effect that taillights must emit a red light plainly visible from the rear for a distance of 500 feet. It is clear that the trial court assumed and the respondents now contend
The second fact or factor that gives us pause is the sequence of events related to the admitted absence of
"(1) No person shall operate on a highway during hours of darkness any vehicle, except automobiles, having a width at any part in excess of 80 inches unless such vehicle is equipped with:
"(c) Two reflectors mounted on the front and 2 reflectors mounted on the rear of the vehicle in such a manner as to indicate as nearly as possible the extreme width of the vehicle."
It is conceded that this section required the Mackyol truck to have two reflectors mounted to the rear, and that it did not have them. The trial court properly found this to be negligence as a matter of law, and answered the question in the special verdict, "Yes," as to Mackyol being negligent "In failing to have his truck equipped with reflectors." He gave to the jury the causation question as to reflectors, to wit:
"Was such negligence on the part of the defendant, Leslie W. Mackyol, an efficient cause of the collision and the damage sustained by the plaintiff in any of the following respects:
"(b) In failing to have his truck equipped with reflectors?"
The jury answered this question, "Yes." However, on motions after verdict, the judge changed the answer to, "No," stating that "In the instant case, from the evidence produced upon the trial, it is difficult to find any credible evidence to sustain the finding of the jury that the defendant Mackyol's failure to have reflectors on the rear of the truck he was driving was a substantial factor in the cause of the collision." Appellant earnestly contends that this changing of the jury's answer by the judge was error, asking this court to reinstate the answer of the jury as to causation. Once again, the question is close enough. Based primarily on the physical facts
However, it soon becomes clear that respondents' position that the absence of reflectors could not have been causal is based on interpreting the jury finding as determining not only that the truck taillights were burning, but that they were plainly visible for 500 feet to the rear of the truck. Appellant, on the other hand, just as obviously bases her defense of the jury finding upon an interpretation of the jury answer as to taillights burning as not finding them clearly visible for 500 feet. So appellant argues that the jury was entitled to find that the presence of reflectors might have aided the visibility of the truck. Depending upon the broader or more limited interpretation as to what the jury actually found as to visibility of the taillights, either of the contentions has merit.
Putting these two facts or factors side by side, the one as to what the jury found as to taillights and their visibility—the other as to whether the absence of reflectors could be properly found to be causal, we find reason to hold that the real controversy was not resolved by the questions put to the jury and that, in the interest of justice, a new trial should be held.
By the Court.—Judgment reversed, and cause remanded for a new trial.