Holzem v. Mueller

195 N.W.2d 635, 54 Wis. 2d 388, 1972 Wisc. LEXIS 1088
CourtWisconsin Supreme Court
DecidedMarch 28, 1972
Docket7
StatusPublished
Cited by15 cases

This text of 195 N.W.2d 635 (Holzem v. Mueller) 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
Holzem v. Mueller, 195 N.W.2d 635, 54 Wis. 2d 388, 1972 Wisc. LEXIS 1088 (Wis. 1972).

Opinions

Heffernan, J.

We cannot conclude, as a matter of law, that Mueller’s negligence was greater than Kelly Holzem’s. Testimony showed that both parties were negligent. The question is therefore one of apportionment. We have stated:

“. . . we must judge the jury verdict in the light of the familiar rules that (1) a jury verdict will not be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings, (2) this is particularly true when the verdict has the blessing of the trial court, and (3) the [393]*393evidence is to be viewed in the light most favorable to the verdict.” Delaney v. Prudential Ins. Co. (1966), 29 Wis. 2d 345, 349, 139 N. W. 2d 48.

In reviewing the verdict, the trial judge concluded that the facts showed that Kelly had suddenly deviated from her course of travel and swerved in front of the Mueller automobile, thus confronting Mueller with an emergency at a time when it was toó late for Mueller to avoid the accident.

The evidence is uncontroverted that Kelly suddenly crossed the road in front of Mueller without signal or warning. It is equally clear that, under the facts, the jury could have found that Mueller was negligent as to speed.

Viewed by the standards stated above, and in light of the evidence most favorable to the verdict, there was sufficient credible evidence to support a finding of 50 percent negligence on the part of Kelly Holzem.

We have stated that in all cases the apportionment of negligence is one for the jury. We said in Blahnik v. Dax (1963), 22 Wis. 2d 67, 74, 125 N. W. 2d 364:

“. . . apportionment of negligence in a case where one of the parties is a young child is a matter especially within the decision-making province of the jury.”

Whether the findings and apportionment of negligence made by the jury is proper, however, is subject to the additional determination that the jury was properly instructed. Plaintiffs’ attorney submitted pattern jury instruction Wis J I — Civil, Part I, 1285. He made that submission by submitting in its entirety a photocopy 1 of the page on which it appears in the loose-leaf volume of the jury instructions prepared by the Wisconsin Board of Circuit Judges. The record fails to show what portion of that instruction, which is framed in multiple alternatives, the plaintiffs wished to have submitted. At [394]*394oral argument, the plaintiffs’ attorney stated that he had underlined those portions of the pattern instruction which he thought were appropriate to the facts at issue and which he wished the trial judge to use. Although the photocopy of Wis J I — Civil, Part I, 1285 as it appears in the record shows the underlining of the phrase, “when passing (school children) ” and the- phrase, “and when special hazards exist with regard to other traffic or by reason of weather or highway conditions,” there is nothing in the record to show that the underlining was made with the intent the plaintiffs’ counsel asserts on appeal. It is impossible to determine with precision what instruction plaintiffs requested. It is particularly confusing, in light of the fact that the phrase, “when special hazards exist with regard to other traffic or by reason of weather or highway conditions” is underlined and counsel, on this appeal, specifically objects to the reference in the instructions in regard to the factors of weather and traffic “when [he now asserts] such factors were totally foreign to the evidence and completely extraneous to the facts at issue.”

Although it is not clear what the plaintiffs requested, we conclude that the court did not err in omitting from the instructions the phrase, “when passing children.” The instructions given by the trial judge in regard to reduced speed follow:

“Now as the rules of the road and the statutes apply to the defendant William Mueller, you are instructed that the statutes regulating the speed of motor vehicles provide in part that no person shall drive a vehicle at a speed greater than is reasonable and prudent under conditions and having regard for the actual and potential hazards then existing, and that the driver shall exercise ordinary care to so regulate his rate of speed as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with the legal requirements in using due care.
[395]*395“The statute also provides that the driver shall consistent with the requirements I have just stated, drive at an appropriate reduced speed when traveling upon any narrow roadway and when special hazards exist with regard to other traffic or by reason of weather or highway conditions.”

We do not find the instructions submitted to the jury were prejudicial. While the statement that there should be “appropriate reduced speed” by reason of “weather or highway conditions” was completely irrelevant, the record shows no possibility that it could have resulted in jury confusion creating a problem similar to that discussed in Carlson v. Drews of Hales Corners, Inc. (1970), 48 Wis. 2d 408, 180 N. W. 2d 546. Moreover, if counsel’s contention is that the underlined portion of the pattern instruction is what plaintiffs desired, then he asked for that very instruction and cannot be heard to complain of it now.

.. Nor do we see any error in the judge’s failure to include in the instructions that portion of Wis J I — ■ Civil, Part 1,1285 referring to “passing children.” There is nothing to show that Mueller knew, or should have known, that the person ahead of him on the bicycle was a child. He specifically testified that he did not expect to see children on the highway at that distance from a residential area. Wis J I — Civil, Part I, 1285 is particularly appropriate where there is a special situation that alerts the driver to the possible presence of children. In this respect, it is similar to Wis J I— Civil, Part 1,1045, which points out that:

“Drivers of motor vehicles are chargeable with the knowledge that children of tender years do not possess ■the traits of mature deliberation, care, and caution of adults. The driver must increase his vigilance if he knows, or in the exercise of ordinary care should know, that children are in, or are likely to come into, his course of travel.”

[396]*396The comment to Wis J I — Civil, Part I, 1045, citing Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis. 2d 499, 117 N. W. 2d 666, properly points out:

“This instruction should not be given in the following situations: (1) Where the driver had no actual notice of the presence of children, (2) Where there are no special situations, such as a school zone, which should alert the driver to the possibility of the presence of children.”

The same rationale is applicable to Wis J I — Civil, Part I, 1285, and the special admonition in regard to children is not appropriate unless the driver knew, or should have known, that children were likely to be present.

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Holzem v. Mueller
195 N.W.2d 635 (Wisconsin Supreme Court, 1972)

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Bluebook (online)
195 N.W.2d 635, 54 Wis. 2d 388, 1972 Wisc. LEXIS 1088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holzem-v-mueller-wis-1972.