Opinion
No. 170.
Argued September 8, 1971. —
Decided October 5, 1971.
APPEAL from a judgment and an order of the circuit court for Waukesha county: CLAIR VOSS, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Bernard J. Lepgold and Santo J. Ferris, both of Milwaukee.
For the respondents there was a brief and oral argument by Thomas J. Regan of Milwaukee.
Action by plaintiffs James Hikade, minor, by John C. McBride, his guardian ad litem, and Lorena Hikade and Theodore Hikade against defendants, Edmund Ernst and his insurer, State Farm Mutual Automobile Insurance Company to recover damages for personal injuries and property loss. A separate action for personal injuries was commenced by Helmuth C. Dallgas against Hikade and Ernst and their respective insurers. These actions were consolidated for trial.
The accident giving rise to these actions occurred January 31, 1967, at about 5:30 p.m., at the intersection of North 128th Street and Lisbon Road in Waukesha county.
Plaintiff Hikade, age sixteen, was driving his mother's 1967 Buick easterly on Lisbon Road. Defendant Ernst was proceeding westerly on Lisbon Road, intending to turn left on North 128th Street. Several car lengths behind Ernst was Dallgas, driving a Ford Mustang.
Ernst testified that he was traveling at 15 to 20 miles per hour after having left his place of employment, which was approximately 170 feet east of the intersection of 128th Street and Lisbon Road. He stated that he saw an oncoming vehicle on Lisbon Road about 1,000 feet west of the intersection. He turned on his left-turn signal and, without stopping, started to turn left onto 128th Street. At this time he estimated the oncoming vehicle to be 700 feet from the intersection. He completed his turn and contends he was completely clear of the intersection when the rear of his car was struck by the Hikade vehicle.
Plaintiff Hikade testified that he was traveling at 30 to 35 miles per hour on Lisbon Road. When he was 200 feet from the intersection, he saw the Ernst car, noticed the left-turn signal and observed that the car was slowing down. He stated that when he was right at the intersection, Ernst turned in front of him and that the cars collided when Ernst was fully in the eastbound lane. Hikade further testified that after the collision he applied his brakes as hard as he could with both feet. His car traveled an additional 80 to 90 feet easterly, hitting the Dallgas vehicle head on.
The damages to the Ernst car were slight, being confined to the extreme right rear. The damages resulting from the Hikade-Dallgas collision, however, were such that the motor in the Hikade vehicle was about to fall out, and the car could not be towed on its own wheels; the front of the Dallgas car was completely demolished.
In his testimony Dallgas stated that he was approximately 150 feet east of the intersection when Ernst started his left turn. At that time Hikade was 175 to 200 feet west of the intersection. He said he knew that the accident was about to occur and, as a preventive measure, stopped his car to the extreme right side of the roadway about 80 to 90 feet from the intersection. He saw the collision and testified that the Ernst car was slightly more than halfway through the eastbound lane when Hikade struck the right rear of Ernst's vehicle. Hikade caromed off the Ernst car and headed directly toward Dallgas' car at a speed which Dallgas described as "very fast, very, very fast" and which he estimated to be 60 miles per hour.
The action was tried to a court and jury. A special verdict was returned by the jury, whereby both Hikade and Ernst were found causally negligent. The aggregate negligence was apportioned 70 percent to Hikade and 30 percent to Ernst.
The trial court rendered judgment in accordance with the verdict, denying plaintiffs' motions after verdict for a judgment notwithstanding the verdict, to change the: apportionment of negligence or to grant a new trial Plaintiffs appeal.
The sole issue presented on this appeal is whether there is credible evidence to support the finding of the jury.
An analysis of the evidence reveals that the jury was justified in believing that Hikade was speeding. Dallgas testified that Hikade was traveling at 60 miles per hour after hitting the Ernst vehicle. Pictures showing the damages to each of the cars were introduced into evidence and support the finding of speed. The jury is entitled to draw legitimate inferences from physical facts. Vogel v. Vetting (1953), 265 Wis. 19, 60 N.W.2d 399. Obviously, the jury did not accept Hikade's testimony that he was driving at 30 to 35 miles per hour before hitting the Ernst vehicle, in light of the further evidence that he applied his brakes as hard as he could, yet still managed to travel an additional 80 to 90 feet to strike Dallgas' car with sufficient force to shove it backwards across Lisbon Road and completely destroy the front ends of both cars. We think the jury could well have concluded that the excessive speed at which Hikade was traveling was the principal and predominant cause of this accident and could well have apportioned his negligence at 70 percent.
Under the well-established principles of this court, appellant Hikade undertakes a heavy burden on this appeal. He must recognize that generally the apportionment of negligence is for the jury. Western Casualty Surety Co. v. De Smidt (1971), 50 Wis.2d 672, 184 N.W.2d 848. If there is any credible evidence which supports the jury's finding, it will be upheld. Neider v. Spoehr (1969), 41 Wis.2d 610, 165 N.W.2d 171. This is especially true when the verdict has the approval of the trial court. Berg v. De Greef (1967), 37 Wis.2d 226, 155 N.W.2d 7. On review, this court views the evidence most favorable to the verdict. Stevens v. Farmers Mut. Automobile Ins. Co. (1954), 268 Wis. 25, 66 N.W.2d 668. Appellant places great reliance upon Guptill v. Roemer (1955), 269 Wis. 12, 19, 68 N.W.2d 579, 69 N.W.2d 571, wherein the court stated:
"We might observe that the case at bar is one of three appeals decided by us on this assignment involving motor-vehicle-accident cases in which a driver attempted, as did plaintiff Guptill, to make a left turn in the path of an oncoming vehicle under circumstances where a collision was certain to ensue if the latter vehicle continued in its same lane of travel and at its same speed. It is difficult for us to understand how a conscientious jury under such circumstances could attribute the smaller percentage of negligence to the driver making the left turn whose act precipitated the situation resulting in the collision. . . ."
Appellant's reliance on that statement is misplaced. In Pucci v. Rausch (1971), 51 Wis.2d 513, 516, 187 N.W.2d 138, this court said:
" Guptill v. Roemer (1955), 269 Wis. 12, 68 N.W.2d 579, 69 N.W.2d 571, is not authority for the proposition that every driver who makes a left turn which precipitates a situation which results in a collision is guilty of negligence in a greater degree than the other driver. In Grana v. Summerford (1961), 12 Wis.2d 517, 521, 107 N.W.2d 463, this court rejected the contention that making a left turn across the path of an approaching car would constitute at least 50 percent negligence as a matter of law, choosing instead to decide such cases on their individual facts. If the jury accepted Rausch's version, no doubt Mrs. Pucci would be more negligent than Rausch in making a left turn 50 feet in front of him, but the jury did not accept his version of the accident."
We conclude that there is ample credible evidence to support the jury's verdict, and the trial court properly denied plaintiffs' motions after verdict.
By the Court. — Judgment and order affirmed.