Opinion
December 1, 1960 —
January 10, 1961.
APPEAL from a judgment of the circuit court for Wood county: HERBERT A. BUNDE, Circuit Judge. Affirmed.
For the appellants there was a brief by Brazeau, Brazeau Cole of Wisconsin Rapids, and oral argument by Richard S. Brazeau.
For the respondent there was a brief by Crowns, Crowns Merklein of Wisconsin Rapids, and oral argument by Byron C. Crowns and Robert J. Merklein.
Action to recover for personal injuries and property damage resulting from a collision between two motor vehicles.
On December 19, 1957, at about 5:30 p.m., plaintiff was riding in her own automobile, which was driven by her husband, Royal George Seefluth, the interpleaded defendant herein, when it collided with a parked truck owned by the defendant C. Joe Morzinski. At the time of the trial the defendants were Morzinski, his insurance carrier, and Mr. Seefluth.
The Seefluth car was proceeding in a southerly direction on Fourth Street South in the city of Wisconsin Rapids. It had been a cloudy, dark day and the black-top surface of the street was wet. The Morzinski vehicle was a 1947 Ford truck with a platform and stake body. The platform was 95 inches in width. Morzinski had parked his truck on the west side of the street in front of a dwelling for the purpose of delivering a Christmas tree. Seefluth was driving south at a speed of 20 to 25 miles per hour with the car lights on low beam. Neither he nor the plaintiff saw the truck before the collision. Two feet or more of the right front of the automobile collided with the truck. The platform of the truck was of sufficient height so that the front of the car went under the platform. The left two feet or more of the platform came through the windshield of the car and struck the plaintiff in the face, causing serious injuries. The bumper and right front of the automobile were damaged by colliding with the left rear dual wheels and other portions of the truck below the platform.
By special verdict the jury found that Morzinski was causally negligent with respect to the parking of his truck and with respect to having the lights thereon illuminated at the time of the accident. Both Seefluth and the plaintiff were found causally negligent with respect to lookout. The jury apportioned 50 per cent of the total negligence to Morzinski, 40 per cent to Mr. Seefluth, and 10 per cent to the plaintiff. The jury also determined the plaintiff's damages, about which there is no issue.
Judgment was entered on April 25, 1960, in favor of the plaintiff and against the defendants Morzinski and his insurance carrier with provision for contribution against Seefluth. The defendants Morzinski and his insurance carrier appealed.
The issues involved upon this appeal as stated by the appellants are as follows:
"1. Is the testimony of a witness, although not directly controverted, which is opposed to the unquestioned laws of nature of any probative value?
"2. Assuming the defendant, C. Joe Morzinski, was negligent in the manner in which he parked his truck or negligent in the manner in which the same was illuminated was such negligence a proximate cause of the plaintiff's injuries?"
Under the provisions of sec. 346.54(1)(d), Stats., Morzinski's truck should have been parked with the right wheels within 12 inches of the curb. He testified that he had so parked his truck. His father was riding in the truck with him and he, too, testified that the truck was parked with the right wheels within 12 inches of the curb. A police officer arrived at the scene of the accident shortly after it occurred. The truck had been moved before the officer arrived. According to Morzinski the accident happened near a street intersection and his truck had been pushed forward into the intersection and he moved it so that it would not block traffic. The officer testified that he measured the distance from the curb to the right rear of the Seefluth car and found that distance to be eight feet, two inches. He further testified that the car stood parallel to the curb. Seefluth testified that he was driving at about that distance from the west curb at the time of the accident.
Morzinski called as an expert witness an engineering professor from the University of Wisconsin. In answer to a hypothetical question the expert witness testified that under the rules of physics the result of such a collision would be to cause the automobile to react in a certain manner. He testified that the rear of the car would skid in a clockwise manner and that after the accident the rear of the automobile would be farther from the curb than would the front end of the automobile.
The hypothetical question contained one statement that was in dispute. That statement was as follows: "That as a result of said collision, said automobile bounced backward." Nowhere in their brief do the appellants refer to testimony that supports that statement. Nor can we find that statement in the unduly long appendix, nor do the appellants call our attention to any page in the record where there is any such testimony. Our search of the record discloses the following: The police officer concluded that both vehicles had moved forward following the accident; Seefluth testified that the truck moved forward a short distance but that the car came to an immediate stop. The plaintiff testified as follows:
" Q. Now, as you recall, what happened to your car when it struck this object? A. It stopped.
" Q. Did it move to its right or to its left? A. No.
" Q. Did it seem to stop or to bounce at the moment of the impact? A. Well, it could have bounced, as I remember, it went immediately dead."
In addition the expert witness testified that the extent to which the two automobiles became engaged as a result of the collision would affect the movement of the automobile. He also testified that it was possible for the car to bounce straight back although it was not probable. Later, upon redirect examination, he stated that it would be highly improbable.
Both the police officer and the expert witness computed that if the car was eight feet, two inches from the curb and standing parallel to it, and if the area of contact was the right two feet of the automobile and the left two feet of the truck, and if the platform was 95 inches wide, then the truck was parked 27 inches from the curb. This computation would place the right-hand side of the platform that distance from the curb, while the statute refers to the right wheels. The platform extended beyond the wheels, although the exact distance is not given in the record.
The appellants contend that the testimony of their expert witness makes the testimony of the police officer as to the distance between the right side of the automobile and the west curb incredible and of no probative value. In addition, they contend that no person, on a dark, damp night, could tell with any degree of accuracy that a line almost 20 feet long (the presumed length of the Seefluth car) could be exactly parallel to another line (the west curb line) more than eight feet away. They contend that a few inches in error would be of great materiality.
The appellants further contend that Seefluth was an interested party and that his testimony should have no significance, both because of his monetary interest and because he was excited and busy caring for his injured wife immediately after the collision. The last argument goes to the weight to be given to his testimony, which was a matter for the jury. In passing upon the weight to be given to the testimony of the expert witness, the jury could also consider that his opinion may have been based upon a false assumption, i.e., that the automobile bounced back after the collision. The jury heard the witnesses and knew what the testimony was.
Upon appeal we review the record to determine if there is credible evidence to support jury findings. We find there is ample evidence to support the finding that Morzinski's truck was parked with its right wheels more than 12 inches from the curb. The jury might have believed the expert witness but was not compelled to do so. Upon review we apply a rule which has been announced many times by this court and which is as follows:
"It is the rule that where human testimony is in direct conflict with established physical facts and common knowledge, it is incredible and will not support the verdict of the jury. Strnad v. Co-operative Insurance Mutual (1949), 256 Wis. 261, 40 N.W.2d 552. However, such rule applies only when the physical facts are irrefutably established and permit of but one inference." Milwaukee Automobile Mut. Ins. Co. v. Farmers Mut. Automobile Ins. Co. (1957), 2 Wis.2d 205, 208, 85 N.W.2d 799. See also Kleckner v. Great American Indemnity Co. (1950), 257 Wis. 574, 577, 44 N.W.2d 560.
Under the provisions of sec. 347.27, Stats., certain lighted lamps must be displayed upon vehicles that are unlawfully parked even within city limits. There is no contention that the Morzinski truck was so lighted just prior to the accident. Since the jury could find from the record that the truck was unlawfully parked and the testimony of the expert witness and known laws of physics do not irrefutably establish that the testimony upon which such finding was based is incredible, the findings of negligence as to Morzinski must be sustained.
Upon the second issue the appellants contend that in a portion of Seefluth's testimony he stated that he was blinded by the lights of a cab parked across the street and could not have seen the truck. Therefore they contend that the accident would have happened even though the truck had been properly parked and even assuming that Morzinski was negligent, such negligence was not causal.
Seefluth's testimony varied and at another point in his testimony he stated that he could have seen the lights of the truck had they been on. At another point he gave as his reason for not seeing the truck that it was not lighted. Since there were contradictory statements, the jury had the duty to reconcile his conflicting statements in view of the other testimony in the record and in view of all of the circumstances. We have no hesitancy in saying that the record supports the jury finding that the negligence of Morzinski was causal.
By the Court. — Judgment affirmed.