Leiterman v. Burnette

73 N.W.2d 490, 271 Wis. 359, 1955 Wisc. LEXIS 353

• Court: Wisconsin Supreme Court
• Decided: December 6, 1955
• Status: Published

Opinions

Fairchild, C. J.

A special verdict was prepared by the trial judge. The appellants requested the submission of a question of management and control because respondent, Bryle Burnette, failed to reduce speed timely. While concurring acts may cause an accident, still where a driver has developed speed to a degree that when he discerns an obstruction ahead he is unable to do anything to prevent a collision, then the only factor on which to base responsibility is that very speed.

The evidence shows that shortly before the occurrence of the accident the occupants of the car had stopped alongside the town road. When they got back into the car the two girls were singing from a songbook “during the time that . . . [they] drove after leaving the spot by the side of the road.” There is some evidence that the dome light was on, which, if true, would have lessened the vision of the driver as to distance ahead of the car. Agatha was sitting sidewise in the front seat next to the right door of the car. She was facing toward the occupants in the rear. It is undisputed that Bryle had his eyes and attention fixed on the road. The others were paying no attention to the road, and no one protested as to the speed of the driver. Delores Nesvacil, the girl in the back seat, testified that “I thought it was perfectly all right for him to be driving at the speed of 50 or 60 or somewhat more along that stretch of road.” Gerald Bernetzke, who also rode in the back seat, testified: “I usually drive with my mother, and she drives awful slow. If we were going around 40 I’d know that because that’s the speed my mother drives. Based on my previous experience of speed, all I know he was going pretty fast.” Bryle Burnette testified: “I was driving a 1950 Ford, a V-8. That’s a powerful motor, and I had it wide open all the way. ... I know I was going wide open, because of the damage I did to the car, and what happened.” He also testified that he remembered “making a statement under oath before Robert P. Stebbins, court commissioner, on the 29th day of April, 1954, at which time I said I was going 100 miles an hour.” Burnette attempted to stop his car as soon as he realized the danger with which he was faced. There were well-marked skid tracks for the last 100 feet traveled by the car, and he testified: “I didn’t know I was coming to this intersection until I saw that telephone post, the telephone post I snapped the guy wire off.” “About 300 or 400 feet before the intersection there was quite a dip in that road, ... As soon as I saw the telephone pole I knew something was wrong, so I hit my brake. When I came out of this dip my lights hit the telephone pole.”

In framing a special verdict, the trial judge seeks to have the jury pass upon the ultimate facts on which the judgment will be based. “. . . it must be deemed settled that it is unnecessary to submit a question of fact to the jury when the fact itself is established by undisputed evidence. When so established the fact is as much a verity in the case as though it were admitted by the pleadings. It would be absurd to submit a question of fact to the jury when there is no question that the fact exists.” Berg v. Chicago, M. & St. P. R. Co. 50 Wis. 419, 425, 7 N. W. 347. The verity which exists in the instant case is that Burnette applied his brakes as soon as he sighted the danger with which he was confronted. As was pointed out by the learned trial court: “Burnette testified that he did not realize that he was approaching the intersection until he saw the light pole with the guy wire on the west side of County Trunk G and that he then ‘hit’ his brakes, attempting to bring his car to a stop. He could not do so, obviously, because he was going too fast. ... at no time has it been claimed in this case that any negligence could be predicated upon what Burnette did or failed to do after he in fact realized that' he was coming to a dead-end intersection. Until he saw the peril ahead no negligence could be predicated upon management and control. His negligence up to that time consisted of either faulty lookout or speed, or both.” At the moment when speed might have entered into the matter of management and control, that is, at the very moment Burnette realized the existing danger, Burnette acted in such a way as to relieve himself of any negligence as to management and control by applying his brakes. Therefore management and control did not enter into the picture, and the only fields of negligence in which he could have been guilty were speed and lookout. Questions on those points were ^roperly submitted to the jury, and the jury found:

As to Bryle Burnette:

1. That he was negligent as to speed but not as to lookout.

2. That such negligence was causal.

As to Agatha Leiterman:

1. That she assumed the risk arising from such negligent speed on the part of Bryle Burnette.

2. That she was negligent as to her own safety with respect to protesting against such speed.

3. That she was negligent as to lookout.

4. That her negligence was causal.

Other questions raised by appellants relate to matters that cannot affect the judgment in this case. ‘After considering the record and the instructions of the court, in the light of the established fact that negligence could not be predicated upon management and control, we are of the opinion that all of the material issues were properly submitted to the jury, and that the judgment rendered in accordance with the verdict as rendered should be affirmed.

By the Court.- — Judgment affirmed.