Britton v. Hoyt
Britton v. Hoyt
Opinion of the Court
The basic issue on this appeal is whether the trial court should have changed the apportionment of causal negligence found by the jury; and if so, whether the apportionment made is sustained by the evidence.
The facts out of which this issue arises are somewhat in dispute. Britton and Lund spent part of the evening of July 29, 1968, at a dance hall called “Out of Sight” in
After Britton stopped his car, both he and Lund walked in a westerly direction down the road past the curve and back to the car; they then stood together in front of the car for a few minutes. Britton stood straddling the edge of the roadway and Lund stood on the blacktop portion of the roadway toward the center of the road. At this time two cars came over the hill; neither Britton nor Lund attempted to get out of the roadway. The first car passed the Britton automobile; the second car driven by Hoyt struck the Britton car in the rear, which in turn struck Britton and Lund.
Hoyt had been visiting with her husband and children at her mother’s home in rural Knapp and was returning to her mother’s home at the time of the accident. As she approached the crest of the hill from the east, she was being followed by another automobile. She ascended the hill going west at approximately 40 to 50 miles per hour; as she passed the crest of the hill, the car behind over
Besides the dispute of how far the Britton car was beyond the crest of the hill to the west, there is also a question of whether the Britton car was parked completely on the roadway or only partially on the roadway and whether the warning flashers on the Britton car were in use. Britton testified the right wheels of his car were off the roadway approximately one and one-half feet and that the warning flashers were on. Hoyt testified the Britton automobile was entirely on the roadway and that while the taillights were lit, the warning flashers were not in use and she herself turned them on after the accident.
On the date of this accident, sec. 895.045, Stats. 1967,
On the facts, we think the court was in error in changing the apportionment because we find the answers of the verdict were sustained by credible evidence. There was credible evidence to support the jury finding that Britton was negligent in the manner in which he parked his car and its position on the roadway and in his failure to use warning flashers and in standing in front of his parked car, straddling the edge of the roadway, as of the time of the collision when he saw Hoyt approaching from behind his car. Two factors prompted the trial judge to conclude the jury apportionment was not supported by the credible evidence: (1) Had Hoyt been exercising a proper lookout, she would have had more than 500 feet from the point at which the taillights of Britton’s parked automobile were first visible, as did the driver who preceded Hoyt; and (2) in any event, Hoyt had 15 feet of roadway in which to pass Britton’s parked automobile. The first argument goes more to the establishment of negligence than the quantity of its contribution to the accident. The jury had a right to believe Britton’s car was parked 500 feet over the hill, on the highway, and the taillights were not flickering so as to give warning the car was parked. In daylight hours one can more easily tell whether a car is parked on the highway or moving; at night, it is almost impossible. Hoyt’s attention was, without any fault on her part, diverted by a passing car.
The most that can be said for the reasons of the trial court is that one who has the last clear chance to avoid an accident is the more guilty, but it is doubtful the doctrine of last clear chance was ever the law in Wisconsin. See Switzer v. Detroit Investment Co. (1925), 188 Wis. 330, 206 N. W. 407; Tesch v. Milwaukee Elective Ry. & Light Co. (1901), 108 Wis. 593, 84 N. W. 823; Wilmet v. Chicago & N. W. Ry. Co. (1940), 233 Wis.
In respect to the damages awarded Lund, the trial court was correct in changing the answers and granting an option to Hoyt and her insurance company. Lund was knocked down by the force of the collision and rendered unconscious. Later she was nervous and almost hysterical. She testified she could not remember anything about the accident excepting that sometime later she realized she was hurt. She was taken to the hospital, and given an aspirin; she fainted. A week following the accident the left side of her face was numb, her lower lip hurt and her face was bruised. On the Monday following the accident she returned to work in Minneapolis. After a week on the job her legs swelled up where she could hardly bend them. She used crutches for three days but her legs hurt for several months. After one and one-half to two months the feeling in her teeth came back. She suffered a chipped lateral incisor tooth and a small laceration on the lip. The dentist who treated her gave her tetanus shots. Six tiny pieces of gravel were removed from her lower lip and there were some minute pieces remaining inside which leaves a small lump in her lower lip. At the trial, she experienced some pain in her knee apparently attributable to joint effusion, fluid in the knee joint, which resulted in a limitation of motion.
The defendants admit the award is low but argue it should be sustained, relying on the fact that Lopez v.
By the Court. — The judgment is set aside and the cause remanded to enter a judgment consistent with this opinion.
“Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.”
Presently, the statute bars recovery only if the plaintiff’s negligence is greater than the negligence attributable to the person against whom recovery is sought. See Laws of 1971, ch. 47, effective June 23, 1971: sec. 895.045, Stats.
Concurring Opinion
(concurring). I think the time has come that the Powers
The very number of cases in which this court has been obliged to grant a new trial in the interest of justice because the apportionment could not be found to be supported by the credible evidence operates to recommend a new rule. See, e.g., cases cited in the dissenting opinion in Vincent v. Pabst Brewing Co. (1970), 47 Wis. 2d 120, 137, 177 N. W. 2d 513. See also: Lawver v. Park Falls (1967), 35 Wis. 2d 308, 151 N. W. 2d 68 (concurring opinion); Pruss v. Strube (1968), 37 Wis. 2d 539, 546, 155 N. W. 2d 650; Bourassa v. Gateway Erectors, Inc. (1972), 54 Wis. 2d 176, 181, n. 1, 194 N. W. 2d 602; and Gross v. Denow (1973), 61 Wis. 2d 40, 212 N. W. 2d 2 (dissenting opinion).
Powers v. Allstate Ins. Co. (1960), 10 Wis. 2d 78, 102 N. W. 2d 393.
Reference
- Full Case Name
- Britton and Another, Plaintiffs and Respondents, v. Hoyt and Another, Defendants and Third-Party Plaintiffs and Appellants: Allstate Insurance Company, Third-Party Defendant and Respondent
- Cited By
- 21 cases
- Status
- Published