Millonig v. Bakken

334 N.W.2d 80, 112 Wis. 2d 445, 1983 Wisc. LEXIS 2904

• Court: Wisconsin Supreme Court
• Decided: June 1, 1983
• Docket: 81-2158
• Status: Published

Opinions

HEFFERNAN, J..

This is a review of an unpublished court of appeals decision dated July 28, 1982, affirming a judgment of the circuit court for Milwaukee county, Reserve Circuit Judge MICHAEL T. SULLIVAN, presiding, which dismissed the plaintiffs’ complaint. We affirm the court of appeals..

This case arises out of an automobile accident occurring on January 18, 1977, in Milwaukee, Wisconsin, when a vehicle driven by Amund E. Bakken rear-ended a vehicle driven by Ervin M. Millonig. Action was brought by Millonig against Bakken.¹ At the close of the evidence, Millonig moved for a directed verdict on the premise that the evidence supported the conclusion that Bakken was 100 percent negligent. The circuit judge withheld ruling on the motion for the directed verdict and permitted the case to go to the jury. The jury returned a verdict, finding that defendant Bakken was free of negligence. On motions after verdict, Millonig renewed his motion for a directed verdict against Bak-ken. After a hearing, the circuit court denied the motion to grant the directed verdict and entered judgment on the jury’s verdict, dismissing the complaint.

The plaintiff also moved for a new trial because of claimed errors in the instructions to the jury and because of the inadequacy of the amount of damages found by the jury. These motions were also denied.

It was upon the court of appeals’ affirmance of the trial court’s judgment dismissing Millonig’s action that a petition for review was brought to this court. That petition for review was granted.

The record in this case shows that the accident occurred on the afternoon of January 18, 1977, on South 43rd Street in Milwaukee, Wisconsin. Only the two drivers involved — Millonig, the driver of the lead car, and Bakken, the driver of the following car — testified in respect to the accident. Millonig testified that he was driving south on 43rd Street and that the traffic was very congested, substantially bumper-to-bumper. He stated that he was proceeding very slowly because of the traffic. When the car immediately in front of him stopped, he stopped also. He said it was not a sudden stop, because he was going at a very slow rate. He testified that, upon stopping, he heard a squealing of brakes behind him, at which point his car was struck from the rear by Bakken’s vehicle and pushed into the car ahead of him. Millonig testified that his car sustained some damage and that he sustained injuries to his neck.

Bakken’s version of the accident was not much different than Millonig’s. He stated that the general condition of the road was icy and slippery. He said he first saw Millonig’s car as it passed him. At that time, he stated, he was going about 20 miles an hour. Shortly thereafter, Bakken saw several cars in front of him which were driving bumper-to-bumper and which were slowing down. He said he then slowed down. Just before the accident Millonig was directly in front of Bakken. He saw Millonig’s taillights come on, and Bakken immediately applied his brakes; but, nevertheless, he slid into the rear of Millonig’s car. Bakken was unable to say what his exact speed was, but he said he was not going fast and that he was going at about the speed of 10 miles an hour. He said the interval between his car and Mil-lonig’s at the time he applied his brakes was about the same as that between other cars in the line of traffic. Bakken testified that the very place he had to stop was a slippery spot.

Bakken testified that, when a policeman was called after the accident, it was so slippery that the policeman had trouble staying on his feet. Bakken testified that the policeman who came upon the scene said that he would not charge Bakken with a traffic violation because the road condition was the cause of the accident.

On the basis of all the evidence, there was no contention that Millonig was negligent. Millonig’s counsel, therefore, asserted in his motion for directed verdict that only Bakken was negligent and that his negligence was ipso facto 100 percent the cause of the collision. The trial judge, in accordance with directions of this court in the past, where there was any possible doubt in respect to the outcome of the verdict, withheld his ruling on the motion for directed verdict and permitted the case to go to the jury.

Only the question of Bakken’s negligence was submitted, and the jury found that Bakken was not negligent. Accordingly, the trial court entered judgment on the verdict after denying Millonig’s renewed motion for a directed verdict. The court of appeals affirmed the trial court, concluding that there was sufficient credible evidence to support the jury verdict that Bakken was not negligent.

The standard to be used b;y a trial court in determining whether or not to grant a directed verdict and the standard by which the trial court’s conduct in that respect is to be reviewed by an appellate court are well established. The general underlying principle is that the jury is to be the trier of the facts and, in any circumstances where the facts are disputed or where different inferences may be drawn from the facts, the jury is to be the factfinder. Accordingly, a trial court may take a matter from the jury in only very limited circumstances. Here the question is whether the trial court erred, on the plaintiff’s renewed motion for directed verdict, when it failed to overturn the jury’s determination that defendant Bakken was not negligent.

A negligence question submitted to a jury is a mixed question of fact and law, because the jury is confronted with a dual problem: What did the person, alleged to be negligent, do or fail to do in a particular situation, and what would a reasonable or prudent person have done in the same circumstance.

It is thus clear that only in the most apparent situations, where the facts are undisputed and the duty is absolutely clear, a court should take a case from the jury. Our rules in that respect are designed to assist a judge in making the determination that only the clearest of cases should be decided by the judge rather than by the jury.

The first of such rules is that a trial judge, in considering whether a motion for directed verdict should be granted, must view the evidence most favorably to the party against whom the verdict is sought to be directed. Thompson v. Howe, 77 Wis. 2d 441, 448, 253 N.W.2d 59 (1977). Exactly the same rule is applicable in an appellate court on review of the trial court’s determination. Chart v, General Motors Corp., 80 Wis. 2d 91, 110, 258 N.W.2d 680 (1977). In Zillmer v. Miglautsch, 35 Wis. 2d 691, 699, 151 N.W.2d 741 (1967), we stated the rule as follows:

“In determining whether or not the trial court was in error in failing to direct the verdict, this court must take that view of the evidence which is most favorable to the party . . . against whom the verdict was sought to be directed.”

In Thompson v. Howe, supra, we stated that, in viewing the evidence most favorably to the party against whom the verdict is sought to be directed, the test is whether, “there is any credible evidence which under a reasonable view would support a verdict contrary to that which is sought.” P. 448.

Thus, a verdict should be directed only where there is no conflicting evidence as to any material issue and the evidence permits only one reasonable inference or conclusion. Zillmer, supra at 698.

In Wappler v. Schenck, 178 Wis. 632, 641-42, 190 N.W. 555 (1922), we said :

“It is only when proof is so clear and decisive, and the facts and circumstances are unambiguous and there is no room for fair and honest difference of opinion, that the court may take the case from the jury or pronounce upon the question of negligence as a matter of law.”

Even if the evidence adduced is undisputed, if that evidence permits different or conflicting inferences, a verdict should not be directed; and upon review after verdict, a court is obliged to accept the one adopted by the jury. Leatherman v. Garza, 39 Wis. 2d 378, 387, 159 N.W.2d 18 (1968) ; Lehman v. Sentry Ins. Co., 35 Wis. 2d 96, 150 N.W.2d 333 (1967) ; Zillmer, supra at 699. Thus, it is only in the most unusual case that a jury’s verdict will be upset.

Turning, then, to the facts in this case, we evaluate those facts to determine whether, under the circumstances, a verdict should have been directed finding Bak-ken negligent as a matter of law. As stated at the beginning of this opinion, we conclude that the trial court correctly denied the motion for directed verdict.

On this review, as in the trial court and in the court of appeals, Millonig argues that reasonable minds could come to but one conclusion, and that is that Bakken was causally negligent. If we start out with the assumption that all accidents are the result of negligence, and it be conceded that Millonig was not negligent, then it follows, as does the night the day, that Bakken was negligent and that it was error to fail to direct a verdict. This syllogism, however, is defective, because the common law does not impose upon anyone an absolute duty to avoid an accident. The common law does not contemplate that all accidents or mishaps must arise as a consequence of fault.

Lembke v. Farmers Mutual Auto. Ins. Co., 243 Wis. 531, 11 N.W.2d 169, 12 N.W.2d 18 (1943), highlights the rule of law that no one has imposed upon him the absolute duty not to injure or endanger any person or his property. Lembke, at 535. In that case, we quoted with approval the language of Schulz v. General Casualty Co., 233 Wis. 118, 126, 288 N.W. 803 (1939) :

“ ‘The duty is not to have his car under such control as to enable him to avoid accident, but to use ordinary care to that end.’ ” Lembke, at 535.

Thus, the syllogism implicit in Millonig’s argument is defective. Merely because Millonig was not negligent and an accident happened does not impel the conclusion that Bakken was negligent. The determination whether Bak-ken was negligent is to be made in accordance with the instructions given to the jury in this very case:

“A person fails to exercise ordinary care when ... he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another, to an unreasonable risk of injury or damage.”

Clearly, Bakken did not avoid colliding with Millonig’s car, but the question before this court on review, applying the standards of review stated above, is whether the evidence compels the conclusion that he did an act or omitted a precaution when he ought reasonably to have foreseen that the act or omission created an unreasonable risk of his accident. We are satisfied that, viewing the evidence most favorably to Bakken, the party against whom the verdict is sought to be directed, and in the present posture of the case most favorably to the jury verdict, the evidence does not compel such a conclusion.

Bakken admitted that road conditions were bad, but he also testified that he slowed down in response to those conditions when he became aware of other traffic. Bak-ken testified that it was his estimate that his speed shortly before he put on his brakes could not have been faster than 10 miles an hour. Although Bakken could not testify that he looked at his speedometer to ascertain his speed, nevertheless this court has repeatedly upheld the right of a driver of a vehicle to estimate the speed at which he was proceeding. Mainz v. Lund, 18 Wis. 2d 633, 641-43, 119 N.W.2d 334 (1963) ; see, Milwaukee v. Berry, 44 Wis. 2d 321, 324, 171 N.W.2d 305 (1969). No argument has been made that the speed of 10 miles per hour was negligent as a matter of law. To so contend would be to argue, in another form, that, because there was a collision, someone must have been negligent.

Millonig argues, however, that little credence should be given to the estimate of 10 miles per hour, because, at another place in Bakken’s testimony, he stated he believed he was not going “much more than 10 miles an hour.” (Emphasis supplied.) Thus, Millonig would conclude that, because of the discrepancies in Bakken’s testimony, his testimony was unbelievable and that a rational inference would be to conclude that his speed was excessive under the circumstances.

Although we have said that a jury may, if it so desires, place less credence in the testimony of a witness whose evidence is inconsistent, that does not render that testimony incredible as a matter of law. State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 450, 193 N.W.2d 43 (1972). Thus, it was the function of the jury to determine where in the discrepant testimony and contradiction of the witness the truth really lay. The jury could conclude, even from the confused testimony, that Bakken was traveling at less than 10 miles an hour or, on the other hand, that the speed exceeded 10 miles an hour. The jury could also have drawn the inference of the lower speed from photographs admitted into evidence, which showed very little damage to Millonig’s car. We note that it' is common knowledge — a fact of which we can take judicial notice — that damage to a stationary vehicle when struck by another vehicle even at a low speed barely in excess of five miles an hour may be substantial. See, McGee v. Kuchenbaker, 32 Wis 2d 668, 673, 146 N.W.2d 387 (1966). Hence, the jury, viewing the physical facts, including the damage to the cars — Bakken’s car sustained a cracked grille which punctured the radiator — could have concluded that the collision occurred at a very low rate of speed.

The jury could, from the evidence, conclude that Bak-ken had acted reasonably as an intelligent and prudent person in reducing the speed of his car to less than 10 miles an hour in response to the unfavorable road conditions which he recognized and that the accident occurred because Bakken was confronted with the necessity — occasioned by Millonig’s stop — to come to a halt at a particular spot which was more slippery than the rest of the road on a patch of ice which Bakken had no reason to know was there. There was evidence from which a jury could draw these inferences.

Millonig invites our attention to the safety statute which requires drivers to operate their vehicles at speeds which are safe and prudent under the circumstances and to the safety statute which provides that the operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of vehicles and traffic upon the road and the conditions of the highway. These statutes, sec. 846.14, Distance between vehicles, and sec. 346.57, Speed restrictions, add nothing to the common law and are merely codifications of the duty of ordinary care under the circumstances.

In discussing the reduced speed statute, this court has said in McGee v. Kuchenbaker, supra at 671-72:

“What reduced speed is appropriate depends upon the particular facts in light of the speed a person of ordinary intelligence and prudence would drive under the circumstances, so as not to subject himself or others or his or their property to an unreasonable risk of injury or damage.”

The same reasoning is applicable to both statutes. These statutes do not impose an absolute liability upon the driver to avoid accidents. They merely restate the common law standard of prudent conduct. The evidence was undisputed that Bakken saw Millonig’s vehicle ahead of him, he saw the procession of cars ahead of him, and he testified that, when Millonig’s brakelights came on, he applied his brakes. Certainly, there was no evidence in respect to negligence as to lookout, and the same evidence also demonstrates that he drove so that his car was under proper management and control.

Considering how slowly the traffic was moving, the jury could not only exonerate Bakken from other specific acts of negligence, but on the basis of the evidence could also conclude that, despite the bad road conditions, Bak-ken was not negligent in following too closely. Bakken specifically testified that he was not following more closely than other drivers in the same circumstances at the same time. This, of course, could have led the jury to draw the inference that all of the vehicles following one another were following .too closely; but, on the other hand, it could draw the inference that most drivers do not follow too closely, even in bad weather, and therefore Bakken was acting prudently and was not negligent.

Thus, the evidence presented at trial, when viewed in the light most favorable to Bakken, including the inferences favorable to Bakken which could be drawn from the evidence, does not compel the conclusion that Bakken was negligent. There is room in the evidence for a fair and honest difference of opinion. Accordingly, the trial court properly refused to direct the verdict on the liability issue, and the court of appeals properly affirmed the trial court’s denial.

It is equally true that a jury could have drawn other inferences and that reasonable jurors, from the same evidence, could have concluded that Bakken was negligent. But that is not the question presented on a motion for directed verdict or on a review of the denial of a directed verdict. Had the author of this opinion been serving on the jury, he might well, under the same evidence, have concluded that Bakken was negligent; but there were inferences to the contrary, and he, or a reasonable juror, would not have been compelled to find Bakken negligent. Thus, viewing the evidence and inferences therefrom in the light most favorable to Bakken, the trial court correctly determined that a verdict should not be directed against him.

Nor do we believe that Millonig’s auxiliary argument, that the doctrine of res vpsa loquitur should be applied, is persuasive in this case. Millonig argues that a verdict should have been directed under that doctrine, because there was a rear-end collision with a stationary vehicle and that there is no possible explanation which excludes the defendant’s negligence. The plaintiff’s argument is not, however, completely in accord with the facts, for here there was evidence from which the jury could infer that the stopping took place upon an unusually slippery spot and that Bakken, who testified he was going at a slow rate of speed, was confronted with a situation in which the car unexpectedly skidded. We stated in Bartell v. Luedtke, 52 Wis. 2d 372, 378, 190 N.W.2d 145 (1971), that, “Skidding can occur without fault on the part of a driver.” Thus, the mere fact that Bakken collided with the automobile driven by: Millonig, which had just come to a stop, is not, under decided cases of this court, probative of negligence as a matter of law. As the court stated in Bartell, supra, all that was presented was an issue of fact for the jury to determine. Bartell, in essence, stands for the same proposition as Lembke, supra, that the mere happening of a collision is not probative that someone has been negligent. Generally, res ipsa loquitur only creates a permissive inference and for the doctrine to apply, one of the necessary elements is that the accident probably would not have occurred but for the negligence of the defendant. Mercurdo v. County of Milwaukee, 82 Wis. 2d 781, 785, 264 N.W.2d 258 (1978).

Here, the evidence is consistent with an explanation other than that the defendant was negligent. That this is true was demonstrated in our preceding discussion of the evidence in respect to granting or denying a motion for directed verdict. We do not conclude in this case, however, that res ipsa loquitur is never applicable to a rear-end collision on the highway; but, in the instant case, the inference of- negligence is not so clear that a reasonable person could not fail to accept that inference. Accordingly, under these facts, it would be improper for the court to direct a verdict based on the doctrine of res ipsa loquittir. The question presented was correctly determined by the circuit court and the court of appeals to be for the jury.

Because we conclude that the jury was properly instructed, and instructed in such a manner that the real and significant issues were tried and placed before the jury, it is irrelevant that another jury confronting the same evidence could, by drawing other inferences, reach a different verdict.² We thus conclude that the trial court was not compelled to direct a verdict against Bak-ken, that the facts lend no support for the application of res ipsa loquitur, that the case was tried under correct instructions, posing the real issues, and accordingly a reversal in the interests of justice is not warranted. We affirm the decision of the court of appeals.

By the Court. — Decision affirmed.

1 Mary Millonig joined her husband’s action, alleging loss of consortium. Because we are concerned only with the question of liability, i.e., the question of the conduct of the drivers, we refer to both plaintiff and defendant in the singular.

2 The plaintiif Millonig, as a part of his argument that the real controversy has not been fully tried and that there should be a reversal under sec. 751.06, Stats., argues that specific instructions should have been given: Wis. JI-Civil 1055, Lookout, and Wis. JI-Civil 1285, Speed. The trial court concluded that in the circumstances here Wis. JI-Civil 1112, Operation of automobile following another, sufficiently posed both of those questions to the jury, as well as the question of management and control. The court of appeals concluded that the omission of the requested instructions did not deprive the jury of the opportunity to address the question of speed and lookout; and as we have pointed out above, there was no evidence whatsoever which would have sustained a specific instruction in that latter respect. We are satisfied that the instruction given was sufficient and adequately covered the jury issues.

Plaintiff also complained that it was error for the trial judge to have given a separate instruction, Wis. JI-Civil 220, Jury not to speculate, because the substance of that instruction was covered in the court’s general charge and that to repeat it was prejudicial to the. plaintiff because it would unduly encourage the jury to infer from the evidence facts which would tend to exonerate the plaintiff from negligence. We are not convinced in that respect, but we do agree with the plaintiff that the trial judge was not required to have given the special instruction in regard to speculation under Wis. JI-Civil 220. It was repetitive. However, it was a correct statement of the law, applicable to the circumstances, and not prejudicial to the plaintiff. The admonition, not to speculate, could be as prejudicial — if it was at all — to the defendant as to the plaintiff, for it could be construed as a cautionary instruction limiting the use of inferences which could exonerate the defendant from negligence. We see no error in the jury instructions which could lead to the conclusion that the jury was obliged by the instructions or encouraged by the instructions to make findings which were contrary to the evidence and not in the interests of justice. In viewing the record as a whole, we conclude that the controversy was fully and fairly tried, that there was evidence to support the jury verdict, and hence the verdict should not have been directed. We are not convinced that there has been a miscarriage of justice or that a new trial would, under even optimum circumstances, impel a different result.