Opinion
No. 190.
Argued November 3, 1970. —
Decided December 1, 1970.
APPEAL from a judgment of the circuit court for Waukesha county: CLAIR H. VOSS, Circuit Judge. Reversed.
For the appellants there was a brief by Walter L. Merten and Merten, Connell Sisolak, all of Milwaukee, and oral argument by Walter L. Merten.
For the respondents there was a brief and oral argument by Alvin L. Zelonky of Milwaukee.
The judgment awarded damages to Gertrude Bergmann and her husband, Carl Bergmann, against Thomas W. McCaffrey and his insurer. The judgment was entered following motions after verdict, wherein the trial judge set aside the jury's verdict finding Gertrude Bergmann 45 percent negligent and Thomas McCaffrey 55 percent negligent. In setting aside the verdict, the trial judge found no negligence attributable to Gertrude Bergmann and assessed 100 percent of the negligence to Thomas McCaffrey.
The action arose out of an automobile accident which occurred on the evening of January 30, 1965, during the hours of darkness at the intersection of Elm Grove Road and Cardinal Crest Drive near the city of Brookfield in Waukesha county. Elm Grove Road bridges Interstate Highway 94 at a distance of approximately 125 feet north of its intersection with Cardinal Crest Drive. The terrain is generally downgrade from the crest of the overpass on I-94 to the intersection of Cardinal Crest Drive. On the night in question the road was icy and covered with compacted snow. Although the approach from the north to the overpass was sanded, the road to the south toward Cardinal Crest Drive was not.
Shortly before the accident, Gertrude Bergmann drove her automobile across the overpass proceeding south with the intention of delivering a cat on Cardinal Crest Drive. As she approached the intersection with Cardinal Crest Drive, a "T" intersection with the road running to the east, she applied her brakes and came to a stop with the front of her vehicle within the intersection of Cardinal Crest Drive. She stopped for the purpose of ascertaining whether she had reached the proper street. Her vehicle was stopped in the middle of the right-hand lane. Although there was evidence that there was approximately a six-foot gravel shoulder to her right, she made no effort to park off the traveled portion of the road. At this point, she put her car in neutral, set the emergency brake, reached under the front seat for a flashlight, rolled down the window, and shined the flashlight on the street sign.
At or about this time, an automobile driven by Thomas McCaffrey ran into the rear of the Bergmann vehicle, impelling it across the road and causing it to strike a mailbox. McCaffrey testified that he saw the taillights of the Bergmann automobile at a distance of approximately 55 feet and that he immediately applied his brakes, pumping them to avoid skidding. He attempted to turn to the right onto the gravel shoulder but was unable to do so and collided with the Bergmann car, resulting in property damage to both vehicles and personal injury to Gertrude Bergmann.
The jury returned a verdict finding both parties negligent and apportioning the negligence at 55 percent to McCaffrey and 45 percent to Gertrude Bergmann. On motions after verdict the apportionment was set aside, the judge finding that the negligence was totally McCaffrey's.
Damages are not in issue on this appeal, which is taken from the judgment which followed the judge's order setting aside the jury verdict.
The trial judge failed to issue an opinion setting forth the rationale upon which he changed the jury's verdict, and we are thus deprived of any insight the trial judge might have gathered in making his determination that the evidence did not support the verdict. The rule is clear that, if there is any credible evidence which under any reasonable view fairly admits of inferences which support the jury's verdict, the verdict must be sustained, and neither the trial court nor this court may tamper with it. Doern v. Crawford (1967), 36 Wis.2d 470, 476, 153 N.W.2d 581; Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 248, 101 N.W.2d 83; and Hupf v. State Farm Mut. Ins. Co. (1961), 12 Wis.2d 176, 188, 107 N.W.2d 185. The evidence must be considered in the light most favorable to the jury verdict. Aetna Casualty Surety Co. v. Osborne-McMillan Elevator Co. (1967), 35 Wis.2d 517, 528, 151 N.W.2d 113. Furthermore, the trial judge and this court are only to consider the evidence which supports the jury's verdict. Ziegler v. Wonn (1963), 18 Wis.2d 382, 384, 118 N.W.2d 706. The evidence supporting the verdict must be accepted by the court unless it appears that the evidence is patently incredible. There appears to be no incredibility as a matter of law in the testimony supporting the jury's verdict. In Willenbring v. Borkenhagen (1966), 29 Wis.2d 464, 469, 139 N.W.2d 53, this court quoted with approval the language of Mr. Chief Justice ROSENBERRY appearing in Lutzenberger v. Milwaukee Electric Railway Light Co. (1937), 224 Wis. 44, 48, 271 N.W. 409:
"`. . . The question here is, Is there credible evidence to sustain the verdict? If there is, even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict of the jury must stand. The credibility of witnesses and the weight of the evidence are for the jury. The court does not retry the question. The court merely ascertains whether there is credible evidence to sustain the verdict. . . ."
The question properly posed to the jury was whether Gertrude Bergmann was negligent. The trial court properly defined negligence as the "failure to exercise ordinary care . . . that degree of care which under the same or similar circumstances, the great mass of mankind would ordinarily exercise."
The record is replete with evidence from which the jury could properly conclude Gertrude Bergmann had failed to exercise ordinary care. She stopped her car on a downslope of an icy incline. She knew that the road was slippery and testified that she had skidded before coming to a stop. She had just passed over the crest of the overpass and knew that vision was obstructed until after a vehicle had passed over the crest of the overpass. She stopped her vehicle in the center of the traveled lane, which the driver of an oncoming vehicle would reasonably expect to be free of moving vehicular traffic. Her stopping was something more than momentary, for, as set forth above, she set her handbrake, put the car in neutral, reached for the flashlight, opened the window, and shined the light at the street sign. It is clear that the jury concluded that, under these circumstances, she did not exercise ordinary care. The jury's verdict is a subjective judgment of what it considered negligence based on a standard to which it believed the ordinary mass of mankind would conform. It clearly felt that Gertrude Bergmann's stopping under the circumstances was negligent.
Since the record contains credible evidence from which the jury could have concluded that Gertrude Bergmann was negligent, it was error for the trial court to change the jury's determination, and the verdict must be reinstated.
Although implicit in the trial judge's reversal of the jury's verdict is the finding that the negligence was disproportionate, we cannot conclude that it was so disproportionate as to be unreasonable or shocking to the conscience of this' court.
By the Court. — Judgment reversed and the cause remanded with directions to reinstate the verdict and for judgment upon the verdict as reinstated.