Opinion
May 12, 1947. —
June 10, 1947.
APPEAL from a judgment of the circuit court for Fond du Lac county: LOUIS J. FELLENZ, Circuit Judge. Affirmed.
John L. Schlatterer of Milwaukee, and F. W. Cosgrove of Fond du Lac, for the appellant.
For the respondent there was a brief by Kenneth M. McLeod, attorney, and Joseph D. Donohue of counsel, both of Fond du Lac, and oral argument by Mr. McLeod.
The action arose out of a collision between an automobile operated by the plaintiff's deceased husband, Darrell M. Martin, and a truck-tractor to which a gasoline-tank trailer was attached, operated by Anthony Balcerowski, an employee of the defendant. The accident occurred on June 15, 1945, at approximately 12:45 a.m., about five miles south of Fond du Lac on United States Highway 41, a concrete highway eighteen feet in width running in a general northerly and southerly direction.
The plaintiff's intestate, who died shortly after the collision, was proceeding northward, accompanied by Mrs. Edith Baird, a guest. It was raining and the highway was somewhat slippery. The Barry truck and trailer, which was seven feet eleven inches in width, was proceeding southward. The only eyewitnesses were Mrs. Baird and Balcerowski. Mrs. Baird testified that when she first saw the truck approaching three hundred to five hundred feet away it was being operated east of the center line of the pavement. She said that Martin's car was east of the center line at that time, and that when she remarked upon the truck's position Martin turned his car further to the right. She said that just before the impact it swerved to the left. Balcerowski testified that he was proceeding on the west side of the center line and that about one hundred feet from the point of impact the Martin car turned toward the west, crossed the center line and struck the truck. He said that when he first observed the course of the Martin car to the west he turned the truck to the west partially off the pavement and that it was in this position at the time of the collision.
Tire marks showed that the truck was turned partially off the west side of the concrete pavement onto the shoulder north of the point of collision. The point of collision was located by testimony with respect to glass and debris on the pavement, tire marks made by the Martin car, and gouge marks made by the frame of the truck after the rear wheels had been knocked off. Most of the debris lay in the center of the west lane.
The back of the trailer came to rest eight to twelve feet south of the point of impact and ten or twelve feet west of' the westerly edge of the pavement. The tractor was facing south-easterly with the front end one and one-half feet from the center line of the pavement. Tire marks made by the Martin car began about two feet west of the center line of the pavement and extended in a northeasterly direction sixty-three feet to where it came to a stop. The Martin car brushed the front end of the truck and followed along the side until it struck the sanders and left rear dual wheels.
The case was consolidated for trial with an action by Mrs. Baird, the guest, against the Barry Company, its insurer, and Martin's insurer, and with an action by the Barry Company against Martin's insurer. The cases were tried to a jury which found in a special verdict that Balcerowski was not negligent with respect to his line of travel but was negligent with respect to control and management, and that such negligence constituted a cause of the accident. It found that Martin was negligent with respect to his line of travel and also with respect to control and management, and that in each respect the negligence was a cause of the accident. It attributed negligence of thirty-five per cent to Balcerowski and the Barry Company and sixty-five per cent to Martin. Upon motions after verdict the court changed the answers with respect to the negligence of Balcerowski as to control and management and the causation of such negligence to a finding that there was no negligence and no causation, and changed the answer apportioning negligence by absolving Balcerowski and the Barry Company from any negligence, and by fixing the negligence of Martin at one hundred per cent. Judgment dismissing the complaint was entered on the verdict as amended by the court's finding. Plaintiff appeals.
The appellant argues that the court committed prejudicial error in the conduct of the trial and also erred in changing the jury's answers in the special verdict.
The claimed errors in the conduct of the trial are that the judge improperly commented upon the merits of the case in the presence of a juror, that he made other improper comments in open court, including remarks during the examination of witnesses, and that an adverse examination of Mrs. Baird bearing primarily upon Martin's negligence should not have been received in evidence. In our view the evidence would not permit of a finding of causal negligence on Balcerowski's part and, such being the case, if the claimed errors occurred, they could not have been prejudicial to the appellant.
The physical facts demonstrate that Balcerowski was operating his vehicle on the proper side of the highway at the time of the collision. He had partially turned off the pavement prior to the collision and it occurred at least two feet west of the center line of the highway. The jury could not properly have found otherwise than that Balcerowski was operating his truck within the proper lane of travel at that time. Had it found otherwise, it would have been the duty of the court to change its answer. Holborn v. Coombs (1932), 209 Wis. 556, 245 N.W. 673; Burns v. Weyker (1935), 218 Wis. 363, 261 N.W. 244. Nor could Balcerowski have been found negligent as to his line of travel prior to the accident. Mrs. Baird said that when she saw the truck approaching three hundred to five hundred feet away it was across the center line to the east. Assuming this were so, the truck was turned to the proper side of the road and off the pavement onto the shoulder north of the point of collision. There is no basis for a conclusion that operation of the truck east of the center line prior to the collision, as stated by Mrs. Baird, could explain Martin's crossing the center line to the west. In fact, Mrs. Baird testified that as she remarked about the truck approaching to the east of the center line, Martin turned his car further to his right, or to the east, until it suddenly swerved to the west. Assuming that the jury were to have believed Mrs. Baird's testimony, it could not have found causal negligence as to Balcerowski's line of travel prior to the accident, and there is no other evidence from which it could have found such negligence.
There is no basis in the evidence for the finding that Balcerowski was causally negligent with respect to control and management. He said that he applied the brakes to the truck and trailer and it is certain that he turned off the pavement prior to the accident. He was not required to anticipate that Martin's car would cross the center line to the west and there is no showing that when he observed that it was doing so, he could have done anything that he did not do to avoid the accident.
The foregoing discussion is sufficient to dispose of the contention that the court erred in changing the jury's answers. Since, as we hold, the court properly changed the answers relating to Balcerowski's management and control and the percentage of negligence attributable to him, there is no occasion to consider whether it properly attributed entire responsibility for the accident to Martin. That matter is not relevant, although it would be in relation to the other two cases, neither of which is here.
By the Court. — Judgment affirmed.