HALLOWS, C. J.
There are, as in many automobile accident cases, two divergent theories of how the accident happened. The accident occurred on South Superior Street, the main traffic artery through Antigo, at 3:30 in the afternoon of October 10, 1964. The weather was clear and the road was dry, straight and level. South Superior Street is also State Highway 45 and runs north and south and is divided by a single-painted stripe down the center, separating the northbound traffic from the southbound traffic. The street is approximately 44 feet wide with room for two lanes of traffic to proceed in the
After Schumacher finished shopping at a food market on the west side of South Superior Street, he exited from the market's parking lot and turned left on to South Superior Street, heading north. Some 300 feet north of the market he turned his auto in a northeasterly direction in the process of making a right turn to enter the driveway of another market on the east side of South Superior Street. As he was making this turn, his automobile was struck on the right-rear bumper by the motorcycle driven by Bohlman, who had been proceeding north on South Superior Street. Bohlman was thrown from the motorcycle over the trunk of the automobile, and landed approximately eight feet north of the auto. He sustained serious leg injuries.
According to Schumacher's version of the accident, after he turned north onto South Superior Street, he proceeded at a speed of some 20 to 25 miles per hour with the left-side wheels of his automobile positioned three to four feet east of the painted-center stripe. This would place his automobile in the inner area or lane of the east half of South Superior Street. Before turning from this area, he applied his brakes, put on his turn signals to indicate his intention to make a right turn, checked his rearview mirror, and saw nothing. He testified he did not see the motorcycle or hear any horn sounding and that he was not struck until his front wheels were up on the sidewalk and his rear wheels were climbing the driveway incline from the street. On this theory, the accident was a mine-run, rear-end collision caused by Bohlman following Schumacher at too close a distance and failing to sound his horn.
Bohlman's story is substantially different. He claims the accident occurred because Schumacher attempted to
Schumacher and American Family raise a question in respect to instructions on the apportionment of negligence, request a new trial in the interest of justice, and claim the damages awarded plaintiff were excessive. In respect to the instructions, defendants argue that there was prejudicial error because of the failure of the trial court to give the instructions requested and that the instructions the court did give were repetitious and unduly emphasized Bohlman's theory of the case.
Following the instruction of the jury and the return of the verdict, defendants moved the trial court for a new trial, among other things, and raised the issue concerning the jury instructions. When defendants' counsel participates along with plaintiff's counsel in chambers with the trial judge in drafting instructions to be given to the jury, such participation without objection to the omission of his proposed instructions from the final draft and a modification in the final draft of one of his proposed instructions constitutes his concurrence in the instructions as the trial judge proposed to give them. By failing to note an objection or to evidence disagreement with the instructions which the trial judge had prepared, defendants' counsel impliedly consented to the instructions given and consequently waived any objection which might have been taken assuming a breach of the requirement or the duty of the trial judge to give the requested instructions. While it is the practice for trial
Appellants argue that when a party claims error because of the failure to give instructions, he need only show that a timely request for appropriate instructions was made and that a motion for a new trial, bottomed on such error, was made, citing Carson v. Pape (1961), 15 Wis.2d 300, 112 N.W.2d 693, and Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380. Because both these steps were taken in the instant case, appellants maintain they are entitled to raise the issue relating to the instructions as a matter of right; we think not. In Savina v. Wisconsin Gas Co. (1967), 36 Wis.2d 694, 154 N.W.2d 237, plaintiff complained on appeal about the form of a verdict question and certain instructions. The court held plaintiff could not raise these issues as a matter of right.
"These issues cannot be raised as a matter of right as there was no timely objection either to the form of the verdict or to the insufficiency of the instruction and no additional instruction was requested of the court. An objection to the form of a verdict must be made promptly. If counsel knows the form of the verdict prior to the verdict's submission to the jury, he should then object;
"An objection to the instructions for inadequacy or insufficiency must also be made at least prior to the return of the verdict. Generally, counsel should timely submit his requested instructions, but if this is not done and the instructions given are not erroneous as a misstatement of the law but are incomplete, it is the duty of counsel to object at the time the instruction is given. Carson v. Pape (1961), 15 Wis.2d 300, 112 N.W.2d 693; Grinley v. Eau Galle (1956), 274 Wis. 177, 79 N.W.2d 797. Absent proper objections by the plaintiff, these alleged errors in the verdict and the instructions are not before us." Savina v. Wisconsin Gas Co., supra, 701, 702.
See also: Menge v. State Farm Mut. Automobile Ins. Co. (1969), 41 Wis.2d 578, 164 N.W.2d 495. On the facts of this case, the defendants-appellants cannot raise the question of the trial court's failure to give the requested instructions or object that the instructions given were erroneous or overemphasized the plaintiff's theory of the case.
The appellants also complain that the five-sixths verdict instruction given by the court was inaccurate and prejudicial because coercive. The language of the instruction was similar to that specifically disapproved in Guth v. Fisher (1933), 213 Wis. 323, 251 N. W. 223; Kasper v. Kocher (1942), 240 Wis. 629, 4 N.W.2d 158; Perkie v. Caroline Ins. Co. (1942), 241 Wis. 378, 6 N.W.2d 195; and Johnston v. Eschrich (1953), 263 Wis. 254,
"A judgment will not be reversed on the ground of misdirection of a jury unless this court is of the opinion after an examination of the entire record that the error has affected the substantial right of the party seeking the reversal. Sec. 274.37, Stats. This is a test of probability, not possibility, requiring the entire evidence to show that had not the error occurred the result would probably have been different [citing cases]. It does not appear from the record that had the instruction not been given a different result would or could have followed."
The trial court did not commit error in refusing to find Bohlman as a matter of law at least as negligent as Schumacher. Appellants' argument is based on the theory the jury in finding Schumacher 85 percent causally negligent had to find him negligent in all respects submitted, i.e., position on the roadway when he
However, the jury chose to believe Bohlman's theory of the accident, which it had a right to do, and we conclude from a review of the evidence that there is sufficient credible evidence which under a reasonable view in a light favorable to the verdict, supports the verdict and therefore we should not disturb it. Rodenbeck v. American Mut. Liability Ins. Co. (1971), 52 Wis.2d 682, 190 N.W.2d 917; Lautenschlager v. Hamburg (1969), 41 Wis.2d 623, 165 N.W.2d 129; Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706; Delaney v. Prudential Ins. Co. (1966), 29, Wis. 2d 345, 139 N.W.2d 48; Schwalback v. Antigo Electric & Gas, Inc. (1965), 27 Wis.2d 651, 135 N.W.2d 263.
In some cases when, as a matter of law, this court can find a person's negligence exceeds that of another
Appellants argue that a new trial should be granted in the interest of justice because even if the negligence of Bohlman was not more than 50 percent, the apportionment of only 15 percent to Bohlman was so contrary to the great weight and clear preponderance of the evidence as to be grossly disproportionate. This court has on some occasions granted a new trial when the apportionment of negligence was grossly disproportionate. Lautenschlager v. Hamburg, supra, 627, 628; Loomans v. Milwaukee Mut. Ins. Co. (1968), 38 Wis.2d 656, 158 N.W.2d 318; Bishop v. Johnson (1967), 36 Wis.2d 64, 152 N.W.2d 887; Lawyer v. Park Falls (1967), 35 Wis.2d 308, 151 N.W.2d 68; Gauthier v. Carbonneau (1938), 226 Wis. 527, 277 N. W. 135; Zenner v. Chicago, St. P., M., & O. Ry. Co. (1935), 219 Wis. 124, 262 N. W. 581.
Bohlman was in the hospital, the first time, for approximately one month. He was readmitted for treatment of an ulcer which developed to the rear of his leg. He has a scar three inches long on the right patella, a half-moon scar six and one-fourth inches long on the right anterior tibia. He has a slight limp without a shoe. He has a scar three inches wide and two and one-half inches long to the back of the knee. Bohlman has sustained 10 percent loss of the backward bending of the foot, 10 percent loss of the flexion of the knee. There is a hypertrophic development at the right patella, the inferior pole, which causes rubbing in the knee joint which is associated with pain.
There is evidence the bones of the lower leg are permanently displaced and there is a residual permanent bowing of the large bone. The bones healed in this misalignment which is permanent. The misalignment has tilted the angulation of the leg bones with the ankle joint, resulting in a shortening of the Achilles tendon, a
The trial court found the amount awarded by the jury was not excessive. After a review of the record, we conclude the trial court was not in error in sustaining the award of damages.
By the Court.—Judgment affirmed.