Summary
In Augustin v. Milwaukee Electric Railway TransportCo., 259 Wis. 625, 49 N.W.2d 730 (1951), the jury determined that the defendant was not negligent, with two jurors dissenting.
Summary of this case from Nommensen v. American Continental Ins. Co.Opinion
October 9, 1951 —
November 6, 1951.
APPEAL from an order of the circuit court for Milwaukee County: OTTO H. BREIDENBACH, Circuit Judge. Reversed.
For the appellant there were briefs by Shaw, Muskat Paulsen of Milwaukee, and oral argument by Carl Muskat.
Cornelius P. Hanley of Milwaukee, for the respondent Lois Augustin.
For the respondents Frank Augustin and General Accident Assurance Corporation there was a brief by Lines, Spooner Quarles, attorneys, and Charles B. Quarles and Irving T. Babb of counsel, all of Milwaukee, and oral argument by Mr. Babb.
Terence N. Hickey of Menomonie, for the respondent Frank Augustin.
Two cases are involved in this appeal. The first is an action commenced by Lois Augustin against the Milwaukee Electric Railway Transport Company, Frank Augustin, and General Accident Assurance Corporation, for damages arising out of injuries sustained by her in a collision between the automobile driven by defendant Frank Augustin, in which she was a guest, and a streetcar operated by the defendant Transport Company. The second is an action by Frank Augustin against the Milwaukee Electric Railway Transport Company for damages sustained by him in the same collision. Both actions were tried together to a jury. On motions after verdict the special verdict returned by the jury was held to be defective, and the trial court granted the motion of Frank Augustin and General Accident Assurance Corporation and the alternative motion of the plaintiff Lois Augustin for a new trial for this reason.
From the order granting such motions in so far as it affects the defendant Transport Company, and in so far as it denies the motions of said defendant, the Milwaukee Electric Railway Transport Company appeals. Plaintiff Lois Augustin has filed a motion for review.
The accident out of which these actions arise occurred on Sunday, June 30, 1946, at about noon on a clear dry day, at the intersection of West Kilbourn and North Plankinton avenues in the city of Milwaukee. Frank Augustin drove his automobile, in which his wife Lois Augustin rode as a guest, west on Kilbourn avenue. The streetcar of the Transport Company, operated by its employee, Eugene Platz, traveled north on Plankinton avenue. Conflict existed as to the exact location of the point of impact, but it was on or within four feet of the north crosswalk of Kilbourn avenue. At that intersection Kilbourn avenue is one hundred twelve feet wide at the east curb line of Plankinton avenue; Kilbourn is an arterial. Approximately in the middle of Kilbourn avenue at the east crosswalk there is a concrete island ten feet wide at the west end and five feet wide at the east end. A similar island at the west crosswalk is six feet wide and nineteen feet long.
The motorman testified that as he stopped at the arterial stop sign on the south side of Kilbourn avenue he looked to the east and observed two automobiles about twenty-five or thirty feet apart approaching from that direction. The Augustin car was the second one and it was directly behind the first, traveling in the first lane south of the north curb. When he saw them the first car was approximately two hundred fifty feet away. He looked to the west before starting the streetcar, observed no traffic from that direction, and proceeded across Kilbourn avenue; his fastest speed, ten miles an hour, was attained at about the middle of the intersection. There he slowed down to five miles an hour because he thought the two automobiles were going to go by. The first automobile, however, stopped at a point which the witness indicated on a photograph as being well to the north in the east half of Kilbourn avenue. When the first car stopped the streetcar was about fifteen feet north of the safety island and was traveling at about five miles an hour. He assumed that Augustin would also stop, so he released his brakes and proceeded. Then he saw Augustin increase speed and cut around the first automobile right up to the north crosswalk. When he saw that Augustin was not going to stop he applied his emergency brake, rang his gong, and applied sand. At the time of collision the streetcar was going about three miles an hour. The motorman placed a mark on the photograph indicating that the collision took place on the north crosswalk.
Frank Augustin testified that he was familiar with the intersection; that he first noticed the streetcar standing at the stop sign; that he slowed his automobile as he approached the intersection, expecting the streetcar to go by. The other automobile had traveled behind him and had stopped at the safety island in the center of Kilbourn. At that time the streetcar had passed the island. His own car was in the extreme right lane near the north curb of Kilbourn. When the streetcar got past the island the motorman seemed to hesitate after he first started up. Augustin attempted to accelerate when he saw the streetcar bearing down on him. His automobile was damaged at the left rear fender. The collision took place about four feet south of the north crosswalk.
Many other witnesses testified on the trial, but the conflict is substantially as recited in the above.
In addition to the usual instructions, there was an instruction on the right of way of streetcars at an intersection (sec. 85.28 (2), Stats.), and on emergency. The court refused to give an instruction that West Kilbourn avenue at this intersection is in effect two streets because it is divided into two lanes by safety islands on either side of North Plankinton.
The special verdict returned by the jury was as follows:
"Question 1: At and just prior to the collision, was the motorman of defendant's streetcar, Eugene Platz, negligent in any of the following respects: "A. With respect to the speed at which he operated the streetcar? "Answer: No. Dissenting: "B. With respect to keeping a proper lookout? "Answer: No. Dissenting: "C. With respect to the control of the streetcar? "Answer: No. Dissenting: Evelyn Groffy Eleanor Klein "Question 2: If you answer any subdivision of Question 1 `Yes,' then answer the corresponding subdivision of this question: "Was such negligence on the part of defendant's motorman an efficient cause of the collision? [Not answered.] "Question 3: At and just prior to the collision, was Frank Augustin negligent in any of the following respects: "A. With respect to the speed at which he operated his automobile? "Answer: No. Dissenting: "B. With respect to keeping a proper lookout? "Answer: No. Dissenting: "C. With respect to the management and control of his automobile? "Answer: No. Dissenting: Jerome Winninger Alvin C. Cronce "D. With respect to yielding the right of way to the streetcar? "Answer: Yes. Dissenting: "Question 4: If you answer any subdivision of Question 3 `Yes,' then answer the corresponding subdivision of this question: "Was such negligence on the part of Frank Augustin an efficient cause of the collision? "A. With respect to the speed at which he operated his automobile? "Answer: Dissenting: "B. With respect to keeping a proper lookout? "Answer: Dissenting: "C. With respect to the management and control of his automobile? "Answer: Dissenting: "D. With respect to yielding the right of way to the streetcar? "Answer: Yes. Dissenting: "Question 5: If you answer Question 1 or any subdivision thereof `Yes' and Question 2 or any subdivision thereof `Yes' and if you further answer Question 3 or any subdivision thereof `Yes' and Question 4 or any subdivision thereof `Yes,' then answer the following question: "What proportion of the negligence, if any, producing the collision was attributable to: [Not answered.] "Question 6: If the court should be of the opinion that plaintiff, Lois Augustin, is entitled to recover, at what sum do you assess her damages? "Answer: $27,500. Dissenting: George Ney, Jr. Jerome Winninger "Question 7: If the court should be of the opinion that Frank Augustin is entitled to recover, at what sum do you assess his damages? "A. Hospital and medical services for his wife, Lois Augustin? "Answer: $1,000. Dissenting: "B. Loss of services of his wife, Lois Augustin? "Answer: $500. Dissenting: George Ney, Jr. "C. Damages to his automobile? "Answer: $50. Dissenting:"
On motions after verdict the Transport Company moved for judgment dismissing the complaint and cross complaints against it. This was denied. Defendants Frank Augustin and the Insurance Company moved for a new trial on various grounds, including that of a defective verdict. (Sec. 270.25, Stats.) Plaintiff Lois Augustin likewise moved for a new trial. These were granted. All other motions were denied, including that of the plaintiff, in the alternative, "for a judgment on the verdict as returned by the jury against the defendants Frank Augustin and General Accident Assurance Corporation . . . in the sum of twenty-seven thousand five hundred ($27,500) dollars, together with the costs and disbursements of this action."
The testimony recited above is sufficient to show the conflict presented by the evidence. The issues as to the negligence of the motorman and of Frank Augustin were properly for the jury and there is ample evidence to sustain the jury's findings thereon.
The principal question involved in this appeal is whether the verdict returned by the jury is sufficient to sustain a judgment. The appellant Transport Company bases its appeal upon the contention that the verdict was complete as to said company and the trial court should have granted its motion for judgment on the verdict dismissing the complaint and cross complaints against it.
Sec. 270.25, Stats. 1949, provides:
"(1) A verdict or answer agreed to by five sixths of the jurors shall be the verdict or answer of the jury."
This section has been discussed in many cases and one of the latest, and clearest, expressions of the rule is contained in Scipior v. Shea (1948), 252 Wis. 185, 190, 31 N.W.2d 199, where it was said:
"There were twelve jurors in the instant case. The statute as above stated has been construed to mean that where there is a jury of twelve to support a judgment at least ten and the same ten jurors must agree upon all questions essential to support the judgment entered upon it. If it is so agreed it is not necessary that all the questions submitted by the verdict be agreed to by the same ten jurors."
Questions 1 and 2 of the verdict here contained all the essentials necessary for the jury to determine with regard to causal negligence on the part of the Transport Company. of the three subdivisions of question 1 two were answered "No" with no dissents; the third was answered "No" with two jurors dissenting. Question 2, the subdivisions of which were to be answered only if any of the portions of question 1 had been answered "Yes," was not answered.
In discussing five-sixths verdicts in the case of Will v. Chicago, M. St. P. R. Co. (1926), 191 Wis. 247, 254, 210 N.W. 717, the court observed that:
"When in cases of this kind a special verdict is submitted to the jury it generally contains one set or one or more sets, of questions which may determine, independently of all the others, the essential elements of such a case."
Having determined that no causal negligence was established on the part of the Transport Company by the agreement of ten jurors on all questions in regard thereto, the verdict was complete as to the appellant. All the essential elements of the plaintiff's case against the Transport Company were determined in its favor by five sixths of the jury. The trial court, therefore, should have granted the motions made by appellant for judgment on the verdict dismissing the complaints and cross complaints against it.
The verdict was likewise complete as to the negligence of defendant Frank Augustin. Subdivisions A and B of question 3 with respect to speed and lookout were answered "No" unanimously. Subdivision C with respect to management and control was answered "No" with two jurors dissenting. Subdivision D with respect to yielding the right of way to the streetcar was answered "Yes" by all twelve. On question 4 (causation) only subdivision D was answered "Yes" with no dissents. The finding of Augustin's negligence by the unanimous answer to question 3-D makes immaterial the two dissents in subdivision C.
The answer to question 6 in which the jury assessed plaintiff's damages at $27,500 was dissented to by two jurors. Those dissents are the only ones to be considered, the dissents in question 3-C having been rendered immaterial because of the unanimous answer to question 3-D. Clearly, sec. 270.25 (1), Stats., is satisfied by the answer as to damages.
So far as the essential elements of the plaintiff's case against the defendant Augustin were concerned, they were established by the unanimous finding of negligence with respect to failure to yield the right of way. The dissents in question 3-C were immaterial. It was held in the Scipior Case, supra (p. 190):
". . . questions not essential to judgment because immaterial or because rendered immaterial by the answers found to other questions by all or ten agreed jurors may be disagreed to by three or more jurors." (Emphasis ours.) Haase v. Employers Mut. Liability Ins. Co. (1947), 250 Wis. 422, 430, 27 N.W.2d 468, was an automobile accident case in which the jury found each of the two drivers guilty of negligence, attributing eighty-five per cent to Lemke and fifteen per cent to Haase. Since negligence was found on the part of both drivers, the questions in the special verdict in regard to negligence, the questions regarding comparison, and the questions as to assessment of damages could not be determined independently of one another. The court properly held that the verdict was defective because there "was not the required concurrence of at least ten jurors in all findings of the facts essential to entitle Haase to the recovery of eighty-five per cent of the jury's assessment of $5,000 as the damages for his permanent injury . . . ."
The action in Biersach v. Wechselberg (1931), 206 Wis. 113, 120, 238 N.W. 905, was by a guest against the host-driver. The verdict included a question on assumption of risk by the plaintiff. One juror dissented to answers on all questions. Three others dissented on various questions — one, to the finding of defendant's negligence with respect to control; the same one, to the finding of causation of negligence with respect to control; a third, to the finding of no failure of plaintiff to exercise ordinary care for his own safety; and a fourth, on the question of damages. It was there held:
"In the instant case there could be no recovery by the plaintiff, the question of contributory negligence or assumption of risk being in the case, unless and until that matter was disposed of favorably to the plaintiff. If the jury found in favor of the plaintiff upon the question of contributory negligence, then their findings in favor of the plaintiff upon other questions would control, so that in order to make a completed verdict where there is evidence to go to the jury upon the question of assumption of risk or contributory negligence, in order to sustain a judgment in favor of the plaintiff the same ten jurors must agree upon all questions necessary to sustain the judgment, including that of assumption of risk or contributory negligence."
As in the Haase Case, supra, this was a case where a plaintiff's negligence was for the jury and the verdict had therefore to be considered as a whole in the test of its validity under sec. 270.25 (1), Stats.
We have been unable to find any case in which the facts are as they exist in the instant case. There was no question of contributory negligence or assumption of risk on the part plaintiff to be determined here. The verdict is complete in its finding of no causal negligence on the part of the Transport Company. It is also complete in its finding of causal negligence on the part of Frank Augustin, and in its assessment of plaintiff's damages for which he is liable. Plaintiff's motion for judgment on the verdict against Frank Augustin and General Accident Assurance Corporation should therefore have been granted.
The record discloses that the questions included in the verdict were approved by all parties. However, counsel defendant Frank Augustin and for plaintiff Lois Augustin contend that the trial court erred in refusing to give the jury an instruction, in connection with that given on the right of way of the streetcar, to the effect that West Kilbourn avenue at the intersection involved is divided into two lanes by safety islands and that therefore West Kilbourn avenue at the intersection is in effect two streets. It is' our opinion that the trial court properly denied this request.
The basis upon which counsel contend that Kilbourn avenue is in effect two streets is sec. 85.10 (21) (f), Stats., which defines a divided highway as a "highway with two or more roadways separated by spaces not used by vehicular traffic." The safety islands located at the intersection of Kilbourn and North Plankinton avenues are elevated safety zones defined in sec. 85.10 (26). Sub. (25) of that section defines a safety zone as:
"The area or space officially set apart within a highway for the exclusive use of pedestrians or passengers or prospective passengers of public conveyances, and which is protected or is so marked or indicated by adequate signs or marks as to be plainly visible at all times when set apart as a safety zone."
West Kilbourn avenue at the intersection involved is over one hundred twelve feet wide. The islands are located "within" the highway for the express use and protection of the pedestrians crossing it. The situation is not comparable to those in the cases of Geyer v. Milwaukee E. R. L. Co. (1939), 230 Wis. 347, 284 N.W. 1, and Heintz v. Schenck (1922), 176 Wis. 562, 186 N.W. 610.
By the Court. — Order reversed and causes remanded with directions to enter judgment in conformance with this opinion.