Attoe v. Rural Mutual Insurance

265 N.W.2d 281, 83 Wis. 2d 341, 1978 Wisc. LEXIS 992
CourtWisconsin Supreme Court
DecidedMay 2, 1978
DocketNo. 75-894
StatusPublished

This text of 265 N.W.2d 281 (Attoe v. Rural Mutual Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attoe v. Rural Mutual Insurance, 265 N.W.2d 281, 83 Wis. 2d 341, 1978 Wisc. LEXIS 992 (Wis. 1978).

Opinion

DAY, J.

This is an appeal from an amended judgment dismissing, after a jury verdict, the plaintiffs’ automobile negligence complaint. The plaintiff-appellants (hereafter plaintiffs) are Mitchell and Mical Attoe who were minor passengers in the car driven by their mother, Mary Ann Attoe,1 the third party defendant. Maurice Attoe, the children’s father, was not involved in the accident, but is also a plaintiff-appellant seeking to recover for his children’s medical expenses. Eural Mutual Insurance Company (hereafter company) is the defendant-respondent and third party plaintiff and was the insurer of Edwin Bartz, the deceased driver of the other automobile. The jury found Edwin Bartz five percent negligent and Mary Ann Attoe ninety-five percent negligent. Following motions after verdict the trial court granted judgment for the defendant and dismissed the complaint.

[343]*343The only question on appeal is: Was there any credible evidence or reasonable inferences therefrom to support the jury’s verdict that Edwin Bartz was five percent negligent? We agree with the trial court that there was not.

On the morning of October 6, 1967 Mary Ann Attoe was driving south on highway 22 with her two sons, the plaintiffs, as passengers. Mrs. Attoe was on her way to the teacher’s college at Wautoma and was going to drop her sons off at school in Wild Rose. The weather was clear and sunny.

Mrs. Attoe testified that she looked at her speedometer approximately a quarter mile before the accident and that she was going fifty to fifty-five miles per hour.

Near the point where county highway “P” intersects with highway 22 Mrs. Attoe remembered seeing something which frightened her, but she did not remember what it was. She remembered seeing a big green dump truck coming up the hill toward her in the northbound lane. She did not know if it was the truck that frightened her,

Mrs. Attoe stated that there was a pink Rambler, ahead “a bit on the right,” parked on the shoulder. Mrs. Attoe remembered that she was going to “take the shoulder.” She saw the truck and the Rambler and thought she had to get off the road. She remembered putting on her brakes, but does not remember how the car reacted, and did not remember leaving the roadway on the right hand side.

Mrs. Attoe only saw the truck and the Rambler. Prior to the accident she never saw the Bartz car, with which she collided. After Mrs. Attoe put on her brakes the next thing she remembers is waking up in the hospital in Neenah.

Prior to the collision Mr. Bartz was driving northbound in a 1967 Dodge Dart. A northbound driver on [344]*344highway 22 in such a vehicle would have been able to see a car at the intersection of highway “P” and highway “22” from 1,008 feet south of that intersection.

In the area of the scene of the accident highway “22” is constructed of bituminous concrete (blacktop) and is twenty-two and one-half feet wide. There is ten feet of shoulder on either side of the paved road. There are sloping ditches on either side of the road and there is forty-nine feet of ditch between the shoulder and a power line on the east side of the road.

The exhibits and the testimony of a former police officer showed that the Attoe car left a twenty-four foot, ten inch diagonal skid mark on the pavement before entering the shoulder and another eighty-one foot, eleven inch mark on the western shoulder of the road south of the twenty-four foot, ten inch mark. There was also two skid marks of sixty-six feet, five inches and forty-four feet, seven inches on the pavement between the eighty-one foot, eleven inch mark and the impact area. The point of impact was in the northbound lane.

The Bartz car left a fifteen foot skidmark in the northbound lane, south of the impact point, near the center line.

An accident reconstruction expert opined that the accident occurred when the left front of the Dodge struck the right door of Mrs. Attoe’s Mustang. The force of the accident split the Attoe vehicle in half. The rear or passenger portion of the vehicle came to rest fourteen feet northeast of the impact area.

The jury found Mrs. Attoe ninety-five percent negligent and Edwin Bartz five percent negligent. The trial court granted judgment notwithstanding the verdict to the defendant and dismissed the plaintiffs’ complaint.

The trial court, in its decision on motions after verdict, found that there was no credible evidence to show that Mr. Bartz was negligent and also found that Bartz was confronted with an emergency “not of his creation.”

[345]*345The plaintiffs’ appeal from the amended judgment dismissing their complaint.

The trial court granted the defendant’s motion for judgment notwithstanding the verdict and in effect found that Edwin Bartz was not negligent. The jury had found Bartz five percent negligent. Sec. 805.14 (1), Stats. (1975), provides as follows,

“805.14. Motions Challenging Sufficiency of Evidence; Motions After Verdict. (1) Test Of Sufficiency Of Evidence. No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.”

This statute is identical to earlier Wisconsin case law holding that a jury verdict should not be disturbed by a trial or appellate court if there was any credible evidence or reasonable inferences to support it. Lehman v. Sentry Insurance Co., 35 Wis.2d 96, 98, 150 N.W.2d 333 (1967); Braatz v. Continental Cas. Co., 272 Wis. 479, 76 N.W.2d 303 (1956). In Braatz this court discussed the jury drawing inferences from the evidence and stated,

“The rule is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is a question for the jury should be firmly adhered to, and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned.” Braatz, at 272 Wis. 484, quoting from Trautman v. Charles Schefft & Sons, 201 Wis. 113, 115, 228 N.W.2d 741 (1930).

[346]*346Mr. Bartz is deceased and is presumed to have been exercising due care with respect to lookout and management and control. This presumption disappears from the case when evidence is introduced from which the jury may reasonably infer that the deceased was negligent with respect to lookout or management and control. Wells v. Dairyland Mutual Ins. Co., 274 Wis. 505, 510, 80 N.W.2d 380 (1957); Schramski v. Hanson,

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Related

Braatz v. Continental Casualty Co.
76 N.W.2d 303 (Wisconsin Supreme Court, 1956)
Lehman v. Sentry Insurance
150 N.W.2d 333 (Wisconsin Supreme Court, 1967)
Wells v. Dairyland Mutual Insurance
80 N.W.2d 380 (Wisconsin Supreme Court, 1957)
Trautmann v. Charles Schefft & Sons Co.
228 N.W. 741 (Wisconsin Supreme Court, 1930)
Schramski v. Hanson
173 N.W.2d 655 (Wisconsin Supreme Court, 1970)

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Bluebook (online)
265 N.W.2d 281, 83 Wis. 2d 341, 1978 Wisc. LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attoe-v-rural-mutual-insurance-wis-1978.