This is an appeal from a judgment of the circuit court for La Crosse county granting judgment in favor of the defendants and dismissing the plaintiff's complaint. The action was commenced by Candace Sentell to recover for injuries sustained as the
The collision occurred shortly after 2 a.m. on June 4, 1974, on Fourth Street in the city of La Crosse. Fourth Street is a four lane, one-way, northbound street. The two center lanes are traffic lanes, and the two outer lanes are parking lanes. Sentell was one of three persons in the front seat of a car owned by Leo Klug, sitting partially on the right bucket seat and partially on the console. Klug was to her left in the driver's seat, and another passenger was on her right. Klug had parked the car in the west or left parking lane, with its motor running, to await the arrival of a friend in another car who would follow the Klug vehicle to a restaurant some distance away. The three expected their friend to approach along King Street, which intersects Fourth Street at right angles some 50 to 60 feet to the south of the
Just prior to the collision, Klug was watching for the friend's approach in the rear view mirror, and Sentell was turned partially around to her left looking directly out the rear window. The Higby vehicle was proceeding north on Fourth Street in the east or right-hand traffic lane. Higby, Sentell, and Klug were the only eyewitnesses to the accident.
Klug testified that as he observed the Higby car approach, it swerved back and forth from one lane to another until it crashed into his car. Sentell testified that the first time she observed the car some distance away, it appeared to be changing from the right to left traffic lanes, and that when she turned back a moment later she saw it closer and swerving. Higby testified that just as he was approaching the intersection of Fourth and King Streets at a speed of about 20 miles per hour, a third car suddenly appeared on his right, turning right onto Fourth Street from King Street directly in front of him. He said he veered to the left to avoid it, fishtailed, lost control, and ultimately struck the rear of the Klug car. Both Klug and Sentell testified that they saw no other car than Higby's prior to the collision.
The impact of the collision pushed the Klug car forward 15 to 20 feet. The Higby car came to a stop an undetermined distance ahead of the Klug car. Sentell was thrown partially into the back seat, injuring her neck and shoulders. Doctors testified that she would have some degree of permanent pain as a result of her injuries.
Higby testified that he had been at a bar from 9:30 or 10 p.m. until closing time at 2 a.m., and had consumed "up to possibly ten beers." Sentell, Klug, and the friend who arrived at the scene moments after the collision all
Klug testified that the first thing Higby said after the accident was "Don't call the police, it's my fault. I've got insurance, I'll take care of it." Higby did not deny this. Police officers called to the scene testified that Higby did not tell them of any third car, nor give any explanation as to the cause of the accident.
The trial court, with no objection from Sentell, gave the "emergency instruction."
Sec. 752.35, Stats., governing this court's discretionary reversal powers, is identical to present sec. 751.06, and substantially identical to former sec. 251.09, both relating to the exercise of these powers by the supreme court. Under the construction of the latter statutes by the supreme court, which we accept as a binding construction of sec. 752.35, a new trial in the interest of justice should not be granted unless the reviewing court is convinced, on the record as a whole, that there has been a probable miscarriage of justice. Rodenbeck v. American Mut. Liability Ins. Co., 52 Wis.2d 682, 686, 190 N.W.2d 917 (1971); Puls v. St. Vincent Hospital, 36 Wis.2d 679, 693, 154 N.W.2d 308 (1967); Savina v. Wisconsin Gas Co., 36 Wis.2d 694, 704, 154 N.W.2d 237 (1967).
If a probable miscarriage of justice is apparent, however, this court may grant a new trial even where appropriate objections have not been made, sec. 752.35, Stats.; LaTender v. State, 77 Wis.2d 383, 393, 253 N.W.2d 221 (1977); Weggeman v. Seven-Up Bottling Co., 5 Wis.2d 503, 517, 93 N.W.2d 467 (1958); Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 518, 80 N.W.2d 380 (1957), and even though a new trial could not be granted on the grounds that the verdict is unsupported by any credible evidence or is contrary to the evidence. Markey v. Hauck, 73 Wis.2d 165, 171, 242 N.W.2d 914 (1976); First Wisconsin Land Corp. v. Bechtel Corp., 70 Wis.2d 455, 462, 235 N.W.2d 288 (1975). The question for this court is whether the evidence and the law are such that the plaintiff "probably should have won and should therefore be given another chance." Savina v. Wisconsin Gas Co., 36 Wis.2d at 704; Lock v. State, 31 Wis.2d 110, 118, 142 N.W.2d 183 (1966); Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis.2d 105, 119, 124 N.W.2d 73 (1963).
But for Higby's testimony, the facts would warrant a finding by the trial court that he was negligent as a matter of law. Corning v. Dec Aviation Corp., 50 Wis.2d 441, 444, 184 N.W.2d 152 (1971); Bunkfeldt v. Country Mut. Ins. Co., 29 Wis.2d 179, 183, 138 N.W.2d 271 (1965); Goldenberg v. Daane, 13 Wis.2d 98, 104, 108 N.W.2d 187 (1961). Over against this testimony is the evidence that Higby had been drinking steadily for at least four hours; the testimony of three witnesses
Before a party is entitled to the benefits of the emergency doctrine, his conduct must be free from negligence which contributed to the creation of the emergency. Cords v. Anderson, 80 Wis.2d 525, 546, 259 N.W.2d 672 (1977); Kinsman v. Panek, 40 Wis.2d 408, 415, 162 N.W.2d 27 (1968). Before the jury could properly have weighed the question whether defendant's actions contributed to the emergency, it must have first determined that an emergency in fact existed. Higby's claim that the alleged third car created the emergency, and thus freed him of liability to the plaintiff, is an affirmative defense, so designated by him in the pleadings, which he had the burden of proving. Corning v. Dec Aviation Corp., 50 Wis.2d at 444; Voigt v. Voigt, 22 Wis.2d 573, 584, 126 N.W.2d 543 (1964). This claim was denied by Sentell and her witnesses, and was a material fact at issue.
In refusing Higby's request for separate verdict questions as to the existence of the third car and the negligence of its driver, the trial court apparently reasoned that there was insufficient evidence to warrant the same.
While the form of a special verdict is a matter largely within the discretion of the trial court, sec. 805.12, Stats.;
While it is not recommended "in mine-run personal injury actions that the jury be interrogated as to whether certain particular injuries of plaintiff were caused by the accident," our court has held that where, as in the case before us, ". . . plaintiff's damages resulting from an accident would be minimal unless a particularly serious mental or physical condition was also caused by the accident in question, and there is sharp conflict in the testimony as to whether such serious condition was caused by the accident, then a question [inquiring as to an additional fact] . . . is proper and often advisable." Such special fact questions have been termed "useful tools." (Footnotes omitted.)
The reasoning of the Schulz case is applicable here. The defendant's freedom from negligence and liability depended on the existence of a disputed fact upon which there was "sharp conflict in the testimony." While it may not be necessary to submit a separate jury question on the existence of the emergency in the "mine-run"
We do not hold that the defendant's testimony was inherently incredible, though it does, we think, border on the unbelievable. Nor do we hold that the trial court committed any clear error which entitles this defendant as a matter of right to a new trial. It is apparent from the record that the court below was most scrupulous in addressing the motions after verdict, and that it gave great weight, as it should have done, to the jury's finding on the ultimate issue. Nonetheless, it is our conviction from the record as a whole that justice has miscarried for this plaintiff, that a different result is probable on retrial, and that a retrial should include specific jury questions and findings as to the existence of the claimed emergency.
Since no claim is made by either party that the damages assessed by the jury were inappropriate, the trial
In reaching our conclusion, we have not considered the affidavit of Sentell's counsel as to the expressions of certain individual jurors after the verdict, nor the arguments presented on appeal in relation thereto. Though it is submitted that these comments were not an attempt to impeach the jury's verdict, but only an aid to the court in perceiving the incredibility of the verdict, the law is clear that such "aids" to understanding are improper and impermissible. Boller v. Cofrances, 42 Wis.2d 170, 177, 166 N.W.2d 129 (1969).
By the Court.—Judgment reversed and remanded.
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
You will bear in mind that this instruction on the emergency rule is to be applied only in regard to the inquiry of negligence as to management and control. Wis. JI—Civil 1015.
At and immediately prior to the accident of June 4, 1974 was the driver of an unidentified automobile who turned onto Fourth Street negligent in the operation of his automobile?
Was the negligence of the driver of the unidentified automobile a cause of the injuries of Candace Sentell sustained in the accident of June 4, 1974.
The trial court may have rejected the offered instructions, quoted at n. 3, for the reason they assume the existence of the "ghost car." Such reasoning would find support in Huffman v. Reinke, 268 Wis. 489, 67 N.W.2d 871 (1955) and Maas v. W. R. Arthur & Co., 239 Wis. 581, 2 N.W.2d 238 (1942).
"(1) USE. Unless it orders otherwise, the court shall direct the jury to return a special verdict. The verdict shall be prepared by the court in the form of written questions relating only to material issues of ultimate fact and admitting a direct answer. The jury shall answer in writing. In cases founded upon negligence, the court need not submit separately any particular respect in which the party was allegedly negligent. The court may also direct the jury to find upon particular questions of fact."
Though the supreme court has held in one case that "A jury's determination that . . . an emergency occurred is but an intermediate step in determining whether the actor was negligent," Hardware Mut. C. Co. v. Harry Crow & Son, Inc., 6 Wis.2d 396, 405, 94 N.W.2d 577 (1959), and found no basis in that case for submission of a separate question on the intermediate step, the underlying facts constituting the claimed emergency were not in substantial dispute, as they are here. We find no other case on point.