Opinion
December 4, 1957 —
January 7, 1958.
APPEALS from two judgments of the circuit court for Walworth county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there were briefs by Heft Coates of Racine, and oral argument by Carroll R. Heft.
For the respondents Winston there was a brief by R. Stanley Kelly of Burlington, attorney, and Cavanagh, Mittelstaed, Sheldon, Heide Hartley of Kenosha of counsel, and oral argument by William A. Sheldon.
For the respondents Marion Baldwin and Travelers Indemnity Company there was a brief by Godfrey Godfrey of Elkhorn, and oral argument by Thomas G. Godfrey.
Plaintiffs are Arabella Winston and her husband. On August 12, 1955, they brought action against Marion Baldwin and her insurer, and Charles Weiner to recover damages on account of injuries suffered by Mrs. Winston in a collision. The defendants asserted rights to contribution from each other and Miss Baldwin's insurer sought recovery from Mr. Weiner for damage done to her automobile. The jury found causal negligence on the part of Mr. Weiner and none on the part of Miss Baldwin. Judgment was entered January 18, 1957, in favor of Mrs. Winston for $27,145.60 and Mr. Winston for $3,471.41 against Mr. Weiner. On June 12, 1957, judgment was entered awarding Miss Baldwin and her insurer costs against plaintiffs and damages and costs against Mr. Weiner. Mr. Weiner appealed from both judgments.
The collision occurred November 1, 1954, shortly after 9 o'clock in the morning. The collision occurred near Lake Geneva on Highway 50. The highway was straight and level but had some slushy snow on it. Mr. Weiner was driving west and was alone. Miss Baldwin was driving east with three passengers. Mrs. Winston was seated in the front on the right, Mrs. Ellsworth in the rear on the right, and Miss Bonnett in the rear on the left. Damage to the cars shown by photographs suggests that the front of the Baldwin car struck the right side of the Weiner car near the front. The Baldwin car came to rest on the south shoulder with its front end toward the pavement angled toward the east. The Weiner car came to rest some distance north of the pavement with the front end toward the north.
Miss Baldwin had no recollection of the collision nor indeed of anything from the preceding night until two days later. Mr. Weiner's testimony gave no explanation for the collision and some of his statements were inconsistent with others. It can be summarized by saying that he either did not recall what happened shortly before the collision or that he remembered that he drove on his own side of the highway but did not see the Baldwin car before the collision.
Mrs. Winston testified she saw the Weiner car swerve suddenly across the highway directly in front of the Baldwin car and in the latter's lane; that the front of the Baldwin car struck the right side of the Weiner car; and that she did not know of any change in speed or course or sounding of the horn by Miss Baldwin.
Mrs. Ellsworth testified that she had seen the Weiner car when it was still on its own side but saw it move toward the south side of the road slowly in a curved manner and in front of the Baldwin car. She also did not know of any slowing down, horn blowing, or change in course by Miss Baldwin.
Miss Bonnett was not able to be at the trial but a lady who had assisted the injured people immediately after the collision testified that Miss Bonnett, when asked what happened, said she didn't know but that she saw the other car weaving up the road. There were no other eyewitnesses and there was no attempt by Mrs. Winston or Mrs. Ellsworth to estimate the distance between the cars when they first saw the Weiner car move toward the south side of the road. The form of special verdict inquired whether Mr. Weiner was negligent with respect to lookout, with respect to failing to pass the Baldwin car to the right giving at least one half of the main-traveled portion of the roadway as nearly as possible, and with respect to management and control. The court answered the question as to negligence with respect to lookout, "Yes" and the jury answered "Yes" to the other negligence questions and answered "Yes" to each of the three causation questions. The jury was asked whether Miss Baldwin was negligent with respect to failing to pass to the right, giving at least one half of the main-traveled portion of the roadway as nearly as possible, and with respect to management and control. The jury answered these questions, "No."
The court answered certain damages questions finding that Mr. Winston was damaged in the amount of $2,471.41 for his wife's hospital and medical expenses and that her hotel expense at Minneapolis, while receiving dental care, was $145.60. The court also found that the damage to the Baldwin automobile was $1,625. The jury found that Mr. Winston was damaged in the amount of $1,000 for his wife's future medical and hospital expenses, and that Mrs. Winston was damaged in the amount of $4,000 for loss of earnings to the date of trial and $23,000 for personal injuries.
In the accident Mrs. Winston was thrown forward so that her head apparently broke a hole in the windshield. She was in the hospital at Burlington immediately after the accident for a period of twenty days. She was then taken to her mother's home in St. Paul and seen from time to time by an orthopedic surgeon who treated her fractured right ankle. This physician saw her the last time on January 23, 1955. She had also fractured one rib on the right and five ribs on the left, fractured her right collarbone, and had other fractures between the ribs and sternum and through the cartilage of the chest wall. None of these has resulted in any permanent injury except that there is a fairly noticeable lump or deformity of the collarbone. Four teeth were damaged, one of which was extracted a few days after the accident because it was hanging only by the tissue; a second tooth was badly shattered and after an unsuccessful attempt to save it, it was extracted. Two other injured teeth were capped and bridgework replaced the two extracted teeth.
The doctor who attended her immediately after the accident found her in shock and observed that she had suffered "fairly severe concussion," was hemorrhaging from an artery in the face, and required well over 100 stitches for facial lacerations. He described the lacerations of the face as including one that was eight inches long, going down the left forehead, across the left eyebrow, across the bridge of the nose, and up over the right forehead; one seven and one-half inches long starting at the left temple, down across the left cheek, forward toward the mouth, branching into two paths which joined again at the left angle of the mouth; small lacerations on the tip and septum of the nose and on the left nostril; a laceration four inches long from the left temporal region, down across the left cheek, and forward, dividing into two parallel lacerations running to the bridge of the nose; and one irregular laceration two inches long from the right angle of the mouth into the right cheek; two lacerations one and one-half inches long across the chin underneath the lower lip; numerous lacerations of the face and of the lips and inside the mouth. There were also small lacerations on both knees. She had some injury to the left facial nerve causing a drooping of the left eyelid so that she could not completely close her left eye. This has greatly improved but at the time of trial she experienced some twitching underneath her left eye when moving her mouth and when she moves her left eye, the left corner of her mouth turns up. The opinion of the doctor who originally treated her was that this condition will be permanent. The doctor removed glass from time to time after his original visit and a plastic surgeon whom she consulted in Minneapolis on and after November 23d, also found it necessary to remove pieces of glass from time to time. Her plastic surgeon felt that no plastic surgery could be undertaken for a considerable period of time because it was necessary to permit greater healing. He did operate on her September 9, 1955, cutting out part of one of the scars on her left cheek and cutting out a scar on her knee and extracting foreign material from it. He gave the opinion that some additional plastic surgery will be worthwhile. A plastic surgeon practicing at Milwaukee examined Mrs. Winston January 13, 1956, on behalf of defendant. He found scars generally following the lacerations previously described except for the change made by plastic surgery. He described some of the scars as welted and as showing definite red color. Also he said that there had been additional healing up to the time of trial and that much of the color had faded to a white which would be permanent. He testified that the scars are permanent except that surgery could help and that he believed that disfigurement in the scars could be minimized at least 75 per cent.
Mrs. Winston testified that the area of the cut on her forehead and the left side of her face around the scars are partially numb. She stated that she has been and still is sensitive about being seen in public and that she does not believe that she has quite as much self-confidence as she did before the collision. The plastic surgeon who treated her testified that she was more retiring and exhibited considerable depression because of her scars and that this affects her ability to earn a living. Defendant's expert, when asked whether the scars would be apt to make plaintiff avoid the public where possible, testified, "I don't think there is any question but what these injuries have left her with some feeling of ill-being."
The record contains a photograph of Mrs. Winston taken shortly before the accident, photographs taken of her face November 5, 1954, at the hospital, and photographs taken by defendant's expert January 13, 1956.
Mrs. Winston was born March 13, 1910, and was forty-six years old at the time of trial in November, 1956. She had been married in 1935, but had also been employed, generally in connection with the retailing of women's clothing. Prior to 1953, she had been employed as a radio commentator and as a buyer in Minneapolis and St. Paul and for a brief period at Seattle. In 1953, she and her husband moved to Moorhead, Minnesota, and she worked as a saleswoman in a women's specialty shop for six months for $50 per week and later was a radio copy writer for four months at the same rate. In 1954, about a month before the collision, she had been employed at the Honey Bear Farm, a shopping center near Lake Geneva, at a salary of $6,000 per year and was working there at the time of the collision. After the collision, in May, 1955, she was offered employment by a Minneapolis department store at $75 a week or approximately $325 per month. In February, 1956, she obtained employment in a store in Chicago, selecting Chicago so that she would be seeing people who had not known her before the accident. She received $75 per week for two months and was then raised to $5,000 per year. Later she was transferred to a store in St. Paul and is now managing it at the same annual salary.
1. Appellant asserts that the trial court erred in failing to submit the question of negligence of defendant Baldwin as to lookout. The court did submit a question as to her negligence with respect to failing to pass Weiner to the right giving him at least one half of the main-traveled portion of the roadway, and a question with respect to management and control. Both questions were answered "No" by the jury. The record shows that when the form of the special verdict was discussed by court and counsel, appellant's counsel urged submission of the issue of speed but assumed that there would be no question as to lookout. On motions after verdict, the only two grounds for new trial which could be material on this point were failure to include the issue of speed and failure to include "the questions proposed upon the trial by this defendant, to which exceptions were preserved." The decision of the court on motions after verdict indicates that the only questions raised as to defendant Baldwin's negligence were whether she was negligent as to management and control as a matter of law and whether the court erred in failing to submit the issue of speed. Appellant does not urge these points on appeal.
Appellant cannot, as a matter of right, claim on appeal that the court erred in failing to submit the issue of lookout. Zoellner v. Kaiser (1941), 237 Wis. 299, 296 N.W. 611. In Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N.W.2d 380, it was said, "We deem the correct rule to be that no error of the court should be reviewable as a matter of right on appeal without first moving in the trial court for a new trial bottomed on such error, if the error is of a category that a trial court could correct by granting a new trial."
Appellant recognizes this rule, but asserts that he should not be bound by it in this instance because the law as announced by this court prior to the trial would have made the submission of the issue of lookout improper and that rule was changed by a decision of this court rendered after the trial and decision on motions after verdict although prior to the entry of judgment herein. In Vogel v. Vetting (1953), 265 Wis. 19, 60 N.W.2d 399, the court considered a collision in which each driver suffered amnesia. The court applied the presumption of due care and at page 24 stated, "Therefore, we must presume that each driver looked and saw the other car which was in clear view. There is nothing in the record upon which there could be a finding that either driver was negligent as to lookout." The court further held that the facts would support an inference that each driver was negligent with respect to management and control. Shortly after the Vogel decision this court decided the case of Weber v. Mayer (1954), 266 Wis. 241, 63 N.W.2d 318. There the driver, who was killed, stopped for an arterial and then proceeded and was hit by a truck which must have been in plain sight when he entered the intersection. It was held that a jury finding of negligence as to lookout was sustained by reasonable inference. Thus the Weber decision suggested at least that a driver entitled to the presumption of due care by reason of death or amnesia might be found guilty of negligence as to lookout if he behaved as if he did not see. Wells v. Dairyland Mut. Ins. Co., supra, was decided January 7, 1957. It expressly overruled Vogel v. Vetting and stated a rule as follows, page 512: "In cases involving a driver, who is unable to testify as to the lookout he maintained immediately prior to a collision because of death or amnesia, he ordinarily cannot be found guilty of causal negligence as to both lookout and management and control. If there is no evidence from which it can reasonably be inferred that he saw the object collided with, then his negligence consists of lookout and not management and control. . . . On the other hand, if there is evidence indicating that such operator did see the object collided with prior to the accident, his negligence lies in the field of management and control, and not lookout." This rule is based on the proposition that in these cases, "the mere happening of the accident supports a finding of either causal negligence as to lookout or management and control, but not both."
Granting that appellant's counsel might have made a request that a question be submitted as to Miss Baldwin's lookout and the court complied had the Wells decision been available, we have examined the record and the verdict to determine whether the interests of justice require a new trial. We think not.
The crucial issue was whether Mr. Weiner, Miss Baldwin, or both failed in their duty to pass to the right. Evidently Weiner's car left his proper lane and crossed in front of the Baldwin car. Only if Miss Baldwin were driving on the wrong side could his conduct be explained as a result of her negligence. The jury decided that Weiner was on the wrong side and Baldwin not. Its finding is not challenged. With that issue resolved, virtually the only remaining issue was whether Weiner's deviation was apparent long enough before the collision so that Miss Baldwin could have done something to avoid it. If there was no opportunity to do anything effective, her failure to change speed or course could not be evidence of causal negligence as to lookout.
There was little evidence that there was any substantial distance separating the cars when Mr. Weiner's deviation first became apparent. It consisted of Mrs. Ellsworth's testimony that he came to the wrong side slowly and gradually and Miss Bonnett's statement that she saw him weaving. The jury was instructed on one's right to assume proper conduct by other travelers until the contrary becomes apparent, the duty to make all reasonable effort to avoid collision after the contrary becomes apparent, and the emergency doctrine. We have no doubt but that, under the circumstances and the instructions given, the jury's finding of no negligence as to management and control was based on a determination that there was not enough time for Miss Baldwin to have done anything effective.
2. Appellant urges that the trial court erred in holding as a matter of law that Mr. Weiner was negligent as to lookout. There were apparent inconsistencies in Mr. Weiner's testimony. Some of his answers were either intentionally evasive or, as suggested by his counsel, may have been caused by lack of thorough understanding of English. He may have remembered what happened, given correct testimony when he said he did not see the Baldwin car, and given false or inaccurate testimony when he said he did not remember. On the other hand, he may not have remembered because of injuries sustained, or may have fallen asleep before the collision. Even if he truthfully did not remember, the possibility that he was in fact attentive seems remote. We are inclined to believe, however, that questions of interpretation, credibility, and weight of his testimony needed to be resolved and should have been left to the jury. If the court erred in this respect, the error was not prejudicial. Unless Miss Baldwin were found negligent in some respect, there would be no occasion for comparison, nor right to contribution, and it is immaterial whether Mr. Weiner was negligent in one, two, or three respects.
3. Finally appellant asserts that the damages awarded to Mrs. Winston were grossly excessive and reflected bias, passion, and perversity.
She was allowed $4,000 for loss of earnings from the collision to the trial. This was slightly more than two years. Her salary of $6,000, briefly enjoyed before the collision, would not be conclusive, but could be accepted as a measure of her earning capacity. If so, she could have earned $12,000 between the collision and the trial. She apparently earned (after February, 1956) some $3,600, leaving a difference of $8,400. Appellant claims that she should have accepted the position offered her in May, 1955, in order to minimize damages. Had she done so, she would have earned an additional $2,925, leaving a difference of $5,475, which is more than the jury did award. Mrs. Winston testified she did not accept the job in May, 1955, because the injuries to her face made her reluctant to appear in public. This was several months before plastic surgery was performed. Whether the reluctance was so natural, substantial, and compelling as to amount to disability was a jury question, but, as above demonstrated, the record supports the award even if her injuries did not prevent her acceptance of that position.
Mrs. Winston was awarded $23,000 for personal injuries. This award is to compensate her for the shocking experience of the collision itself, the concussion, and the pain and suffering, during the healing period, caused by the injuries detailed in the statement of facts. It must cover the loss of two teeth, the slight deformity in the collarbone, and the involvement of the nerve which causes twitching of the eyelid and mouth. The major portion of this award is to compensate her for cuts in her face, also described in the statement of facts. These not only caused pain and suffering immediately after the accident and at the time of plastic surgery, but will do so again at the time of further surgery. Doubtless the scars caused even greater humiliation in the early months than at the time of trial when they had faded to a permanent color. The jury saw her at the trial. From the portrait photograph taken before she was injured, the photographs taken a few days afterward, and those taken more than a year later, we conclude that the jury could find that a drastic change has occurred in her face, sufficient to cause her real unhappiness throughout her life. This is true even though the scars have healed and can be improved by further surgery. Mrs. Winston testified to her self-consciousness about her face and the doctors corroborated her testimony.
There was evidence from which the jury could conclude that her injuries impair her capacity to earn in the future. The difference between the $6,000 she had begun to earn before the injuries and the $5,000 she was earning at the time of trial is not an exact measure of the impairment, but it does tend to support a substantial allowance.
In deciding motions after verdict, the trial court said, "The court believes that the damages awarded by the jury are not only not shocking but are in the realm of fairness." We agree.
By the Court. — Judgments affirmed.