Schramski v. Hanson

173 N.W.2d 655, 45 Wis. 2d 698, 1970 Wisc. LEXIS 1154
CourtWisconsin Supreme Court
DecidedFebruary 6, 1970
DocketNo. 55
StatusPublished
Cited by1 cases

This text of 173 N.W.2d 655 (Schramski v. Hanson) 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
Schramski v. Hanson, 173 N.W.2d 655, 45 Wis. 2d 698, 1970 Wisc. LEXIS 1154 (Wis. 1970).

Opinion

Beilfuss, J.

We believe the following four questions encompass the issues raised by the parties:

1. Is the jury’s finding that the plaintiff’s intestate was causally negligent supported by any credible evidence?

2. Did the trial court abuse its discretion in reducing the damage award for loss of consortium from $16,000 to $3,000?

3. Did the trial court err in refusing to consider plaintiff’s second motion for a new trial on negligence submitted more than sixty days after the verdict was entered?

4. Is the plaintiff entitled to a new trial on negligence in the interest of justice under sec. 251.09, Stats.?

A request was made to change answers in the jury verdict from “yes” to “no” respecting Schramski’s causal negligence. The motion was denied.

The evidence supporting an inference of the negligence of Schramski is the damage to the bus and trailer, the negative evidence of no skid marks on the highway, and the extensive fog. The trial court felt this was sufficient to support the jury’s finding. In the memorandum decision the trial judge stated:

“The damage to the Schramski vehicle was very substantial, indicating that he hit at quite a high rate of speed; there were no skid marks, and the damage would indicate that Mr. Schramski never made any attempt to turn, at least before he got within a foot or two of the truck. From these facts it appears to this court that if Hanson actually did what he said he did, and if it was as foggy as Hanson says it was, then Mr. Schramski must have been driving much too fast for the weather conditions then existing, and the fault would probably be all his.”

[705]*705The photographic exhibits and testimony of the witnesses reveal considerable damage was done to both vehicles. The plaintiff argues that the damage to the vehicles is evidence only of a collision, and not negligence. Under the facts and circumstances as they appear in the record before us we do not accept this argument. The damage done to the two vehicles, the lack of skid marks, and the foggy atmospheric condition permit an inference of excessive speed on the part of Schramski under the facts and circumstances then and there existing.

To support her argument the plaintiff states that because Schramski was on an arterial and favored highway that it was error for the court to instruct the jury that it was Schramski’s duty to drive:

“. . . at such a rate of speed as will permit him to stop within the distance he can see ahead. This means that if, by reason of fog, the distance that he can plainly see objects or obstructions ahead of him is reduced^ he must drive at such a rate of speed as will enable him to bring his car to a standstill within such reduced distance.”

The essence of this argument is that the instruction given pertains only to automobiles traveling on the arterial ahead of the plaintiff’s intestate, not to vehicles crossing the arterial. The standard upon which the lower court instructed the jury was clearly set forth by this court in Guderyon v. Wisconsin Telephone Co. (1942), 240 Wis. 215, 2 N. W. 2d 242. That case involved a wrongful death action to recover damages for the death of plaintiff’s intestate in an accident in which her automobile struck a parked truck along the highway. There was evidence that the visibility near the truck was obscured by smoke drifting across the highway. In holding her negligent as to speed this court said, at page 227:

“Assuming, in the absence of any proof to the contrary on the subject of lookout, that she exercised due care for her safety in that respect, she must have seen the cloud of smoke when she was still at least one hundred [706]*706feet away and that it was being blown across the roadway in such volume and density as to obstruct the view along the highway in and beyond the smoke. Under these circumstances there was applicable to her conduct in the control and management and the speed at which she continued operating the car, the well-established principle that it is the duty of the operator to drive it at such rate of speed that he can bring his car to a standstill within the distance that he can plainly see objects or obstructions ahead of him; and that if he continues to proceed when he is unable to see because his vision is obscured by smoke, or dust, or darkness, he is negligent. Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629; Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207; Fannin v. Minneapolis, St. P. & S. S. M. R. Co. 185 Wis. 30, 200 N. W. 651; Leonard v. Bottomley, 210 Wis. 411, 245 N. W. 849; Mann v. Reliable Transit Co. 217 Wis. 465, 468, 259 N. W. 415.”

It is a very strained distinction to assert that the parked truck in Guderyon is in any sense a different obstruction than the defendants’ semitrailer crossing the intersection in the present case. The duty to maintain a speed in which a stop could be made in fog was incumbent upon Schramski.1 The instruction was completely in order and the jury could find that Schramski was going too fast for the existing weather conditions.

In addition, plaintiff also argues that Schramski was entitled to the benefit of the presumption of due care extended to a deceased driver. Such a presumption would be in order only if there was no evidence of his negligence. Once evidence was introduced that would support a jury finding of negligence the presumption is eliminated. Moose v. Milwaukee Mut. Ins. Co. (1968), 41 Wis. 2d 120, 163 N. W. 2d 183.

Plaintiff-appellant asserts that this court’s opinion in Caldwell v. Piggly Wiggly Madison Co. (1966), 32 Wis. 2d 447, 145 N. W. 2d 745, entitled her to ask for reallocation of the negligence of only one party. That case is not in point. The re-allocation permitted there [707]*707related to the apportionment between two defendants for the purpose of contribution. The negligence attributed to the plaintiff was allowed to stand and a new trial was ordered as to the negligence of each defendant. In the instant case there are only two parties upon whom negligence can be placed, the plaintiff’s intestate and the defendant Hanson. Re-allocation of negligence, if it were to be allowed, would have to be as to both drivers.

The standard of review to be applied to this court’s analysis of the trial court’s reduction of damages for consortium from $16,000 to $3,000 is whether the jury award was within reasonable limits and whether the reduction amounts to an abuse of discretion. Neider v. Spoehr (1968), 39 Wis. 2d 552, 159 N. W. 2d 587.

In analyzing the evidence pursuant to this court’s directive in Moritz v. Allied American Mut. Fire Ins. Co. (1965), 27 Wis. 2d 13, 133 N. W. 2d 235, respecting this element of damages the trial court stated, in a thorough opinion:

“There was almost no testimony in this case as to services performed by the husband for the wife, other than said furnishing of said support, and it is obvious that there could have been none. The testimony did show that the decedent was a very hard worker, and that prior to his death he had a full-time job at the Turtle Lake Dairy plant, and that in addition to such full-time job he also drove school bus for the Turtle Lake High School, and that he also made extra money by tending bar on weekends, and that he also performed certain work around his farm.

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265 N.W.2d 281 (Wisconsin Supreme Court, 1978)

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Bluebook (online)
173 N.W.2d 655, 45 Wis. 2d 698, 1970 Wisc. LEXIS 1154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schramski-v-hanson-wis-1970.