Britton v. Hoyt

218 N.W.2d 274, 63 Wis. 2d 688, 1974 Wisc. LEXIS 1490
CourtWisconsin Supreme Court
DecidedJune 4, 1974
Docket160
StatusPublished
Cited by21 cases

This text of 218 N.W.2d 274 (Britton v. Hoyt) 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
Britton v. Hoyt, 218 N.W.2d 274, 63 Wis. 2d 688, 1974 Wisc. LEXIS 1490 (Wis. 1974).

Opinions

Hallows, C. J.

The basic issue on this appeal is whether the trial court should have changed the apportionment of causal negligence found by the jury; and if so, whether the apportionment made is sustained by the evidence.

The facts out of which this issue arises are somewhat in dispute. Britton and Lund spent part of the evening of July 29, 1968, at a dance hall called “Out of Sight” in [691]*691Menomonie. They danced and drank beer until closing, about 1 o’clock in the morning, and then proceeded toward Britton’s home. After driving approximately two or two and a half miles on a county road, Britton was going west and stopped the car because he was tired. To the east of where Britton stopped was a small hill, which he had just come over, and to the west was a curve in the road to the south. There is dispute as to where between these two points the Britton car was stopped. Britton testified he stopped his car three-tenths of a mile west of the crest of the hill and that there was between .1 and .15 of a mile remaining between the point where he parked his car and the curve in the road to the south. Hoyt testified the car was stopped one-tenth of a mile west of the crest of the hill and that the total distance between the crest of the hill and the curve on the west was three tenths of a mile. These distances were measured by the parties on the odometers of their cars during the trial.

After Britton stopped his car, both he and Lund walked in a westerly direction down the road past the curve and back to the car; they then stood together in front of the car for a few minutes. Britton stood straddling the edge of the roadway and Lund stood on the blacktop portion of the roadway toward the center of the road. At this time two cars came over the hill; neither Britton nor Lund attempted to get out of the roadway. The first car passed the Britton automobile; the second car driven by Hoyt struck the Britton car in the rear, which in turn struck Britton and Lund.

Hoyt had been visiting with her husband and children at her mother’s home in rural Knapp and was returning to her mother’s home at the time of the accident. As she approached the crest of the hill from the east, she was being followed by another automobile. She ascended the hill going west at approximately 40 to 50 miles per hour; as she passed the crest of the hill, the car behind over[692]*692took and passed her, at which time she saw the taillights of the Britton car ahead which she thought was moving. She watched the passing car for a couple of seconds, turned her attention to the Britton car, realized it was not moving and braked her car. She was unable to stop the car short of the collision.

Besides the dispute of how far the Britton car was beyond the crest of the hill to the west, there is also a question of whether the Britton car was parked completely on the roadway or only partially on the roadway and whether the warning flashers on the Britton car were in use. Britton testified the right wheels of his car were off the roadway approximately one and one-half feet and that the warning flashers were on. Hoyt testified the Britton automobile was entirely on the roadway and that while the taillights were lit, the warning flashers were not in use and she herself turned them on after the accident.

On the date of this accident, sec. 895.045, Stats. 1967,1 provided that contributory negligence would not be a bar to the plaintiff if such negligence was not as great as the negligence of the person against whom recovery was sought. Consequently, as a result of the jury finding the plaintiff Britton 50 percent causally negligent, he could not recover agaiñst Hoyt. As a result of the trial court’s changing the apportionment of causal negligence so that Britton was 30 percent negligent, he could recover 70 percent of his damages.

[693]*693The traditional rules governing the changing of answers in the jury verdict are well-known. The jury verdict must be sustained if there is any credible evidence which under any reasonable view of the evidence considered in a light most favorable to the verdict meets the burden of proof applicable to that type of case and thus supports the verdict. It is a question of minimum sufficiency. Bohlman v. American Family Mut. Ins. Co. (1974), 61 Wis. 2d 718, 214 N. W. 2d 52; Rodenbeck v. American Mut. Liability Ins. Co. (1971), 52 Wis. 2d 682, 190 N. W. 2d 917; Ernst v. Greenwald (1967), 35 Wis. 2d 763, 151 N. W. 2d 706; Smith v. Atco Co. (1959), 6 Wis. 2d 371, 94 N. W. 2d 697, 74 A. L. R. 2d 1095. In those relatively few cases where the appellate court or the trial court found the evidence did not support the apportionment made by the jury and the court could find as a matter of law that the negligence of the plaintiff equalled or exceeded that of the defendant, the court so found and denied recovery to the plaintiff. When the court considered the negligence of the plaintiff was relatively less than the defendant and he ought to recover something but the jury’s apportionment would not allow it, he was granted a new trial in the interest of justice. It was sometimes said this would be done even if the apportionment of negligence was not wrong but was against the great weight and clear preponderance of the evidence. This procedure, of course, on the part of the trial court has a statutory basis in sec. 270.49, Stats., which provides for a new trial in the event the verdict is against the great weight and clear preponderance of the evidence. This is only part of the control a trial court has and should have over the actions of a jury, whether the question is negligence, causation, damages or apportionment. However, the majority of the court believes that while a trial judge can find as a matter of law the apportionment of causal negligence is against the great weight and clear preponderance of the evidence or that [694]*694the causal negligence of one actor is greater than that of another, the trial court cannot conclude that exact percentages can be so determined.

On the facts, we think the court was in error in changing the apportionment because we find the answers of the verdict were sustained by credible evidence. There was credible evidence to support the jury finding that Britton was negligent in the manner in which he parked his car and its position on the roadway and in his failure to use warning flashers and in standing in front of his parked car, straddling the edge of the roadway, as of the time of the collision when he saw Hoyt approaching from behind his car. Two factors prompted the trial judge to conclude the jury apportionment was not supported by the credible evidence: (1) Had Hoyt been exercising a proper lookout, she would have had more than 500 feet from the point at which the taillights of Britton’s parked automobile were first visible, as did the driver who preceded Hoyt; and (2) in any event, Hoyt had 15 feet of roadway in which to pass Britton’s parked automobile. The first argument goes more to the establishment of negligence than the quantity of its contribution to the accident. The jury had a right to believe Britton’s car was parked 500 feet over the hill, on the highway, and the taillights were not flickering so as to give warning the car was parked. In daylight hours one can more easily tell whether a car is parked on the highway or moving; at night, it is almost impossible. Hoyt’s attention was, without any fault on her part, diverted by a passing car.

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Britton v. Hoyt
218 N.W.2d 274 (Wisconsin Supreme Court, 1974)

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Bluebook (online)
218 N.W.2d 274, 63 Wis. 2d 688, 1974 Wisc. LEXIS 1490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britton-v-hoyt-wis-1974.