*1 fendants. I must respectfully disagree with that conclusion. view the my question plaintiff’s and com- negligence with that of parison defendants would also be an issue of fact, to be decided or if by jury, by judge by jury waived. another, v. Schrank Respondents,
another, Appellants.* 3, 2, December January 1959.
* denied, costs, 3, rehearing Motion for without on March 1959. *3 Genrich, Terwill- there was a brief by
For the appellants Paul Wakeen, Piehler and D. Conway, attorneys, & iger, Wausau, counsel, oral Her- all of and argument by Hilton L. Terwilliger. bert there was a brief Gennrich August
For the respondent Rhinelander, oral and argument by Kaye & O’Melia O’Melia. C. Donald
For the Irene respondent Gennrich there awas brief Merrill, Schmitt & Wurster of and oral Leon- argument by ard F. Schmitt.
Broadfoot, The defendants contend that the trial J. erred that a issue was not determining pre- sented the evidence negligence August Gennrich with to lookout and respect management and control.
The bill for the Gennrich automobile was repair put evidence. other items was the front Among replaced bumper and bar. grille Schrank testified that before the just impact he was he had reduced his up slight grade Further, to five miles hour. speed per plaintiff August Gennrich testified that his he had foot on the brake while his car was stopped. defendants that would have been argue physically under circumstances for the
impossible these Gennrich auto- mobile to have been forward into the car stalled pushed suffer the amount of front-end indicated the re- bill. From pair these circumstances it is argued infer that there had been a collision between might the front end of the Gennrich automobile and the stalled vehicle prior to the accident from which this action arose.
All of the direct the witnesses for testimony by the plain- is that the automobile tiffs from feet car from stalled automobile and that there *4 it no contact with until after the Gennrich was automobile A of was struck Schrank. Schrank’s portion testimony stated in narrative form in the defendants’ is as appendix follows:
“I know if I been wouldn’t would have able to if I stop brakes real had away hard when I was 75 100 applied my to feet on. and his brake went I I lights could imagine have if I would have known he came ato drive as stopped slow
91 on, I his brake was he did. When first saw lights go feet behind him. If I brakes real 75 to 100 had applied my him, hard like I did when have or 25 feet behind I think I could before him. I him. I don’t did stopped bumping bump his car know if I shoved ahead so that that enough bumped next car that was in the traffic it ahead stalled lane. I pushed some.” cars the the three
The record does disclose of position accident, after the the or the to stalled automobile. A auto- officer testified that the Schrank county traffic-patrol marks the feet in length. mobile left skid on pavement These skid marks about 90 feet north of the driveway started that He fur- from the tavern and extended south distance. ther or three car testified skid marks two fair that of the It is assume north to lengths driveway. south of the skid marks marked the forward progress end rear of automobile and would indi- wheels the Schrank cate the front end struck of the Schrank automobile rear about car north Gennrich automobile two lengths words, that the front end of the other driveway. car from the about one Gennrich automobile was bill indicates clearly automobile. The repair stalled to its rear to automobile was the Gennrich major damage that the Schrank end. It is evident from all of testimony at than five miles hour was faster per automobile collision. Neither the nor the testimony physical time of the an struck the inference that Gennrich had facts would support to Schrank. car struck being stalled prior when the collision occurred testified that Mrs. Gennrich back the seat then into again. thrown ahead and she was was claim for based on damages whiplash Mrs. Gennrich’s to the effect neck. There was medical testimony her injury thrown her head would have been collision that in a rear-end that from this forward. defendants argue back then infer that car also the Gennrich could testimony *5 collided with the stalled automobile before the collision with the Schrank automobile. Her what testimony just hap- at the time of pened the rear-end collision was not definite At positive. said, one time she “It went awful quick.” stated, she “I Again I was thought throwed ahead but that so happened don’t know quickly how are you to ex- she plain.” stated she Again ahead; knew she went she knew it her threw ahead but it she not happened quickly; did know how to explain any but differently she knew that it jerked her back.
Her must be testimony viewed the fact that light the Gennrich automobile was a car from the stalled vehicle at the time of the Schrank collision. As he approached the stalled vehicle Gennrich his brakes. applied This could have caused forward motion Mrs. Gennrich. by event, In any her not testimony would warrant an inference by Gennrich car had struck the already stalled vehicle before hit Schrank. being the entire
Upon record the trial court was justified dis- missing counterclaim.
The main contention this was as upon appeal to the dam- awarded to Mrs. ages Gennrich. The trial court determined that the amount awarded her was excessive. A review of the record indicates that the court was correct. There was some confusion as to the to be options offered to in the parties new trial hope avoiding as to damages. Because of this confusion evidenced the record a proper The trial was submitted. option finally determined $12,000 the least amount was that an unprejudiced jury instructed would assess under the properly probably evidence. aAs matter of fact that was about the amount highest could have been sustained under the evidence. There was which, evidence if believed would have jury, supported a much-lower award. *6 not the circumstances revealed the record we do
Under be court the matter should resubmitted to the trial feel that for an the a submission of or Since options. proper option were excessive we deem that a new trial on the damages Mrs. No of must be held. only Gennrich’s question damages is made as to the Gennrich and that award to Mr. complaint of the is affirmed. judgment part of the the Court.—That the judgment dismissing By part defendants, of of the counterclaim the and part judgment costs are af- and to damages August awarding That the judgment awarding firmed. of part damages reversed, for costs to Irene Gennrich is and cause remanded a to her in new with sustained only respect damages the collision. in the with agree opin- part). (dissenting
Fairchild, J. of issue new trial on the ion of majority except Irene Gennrich. sustained by damages af- error the trial upon There does to any not appear has been found The verdict finding. fecting as aside the finding to be The trial set jury perverse. the amount because solely to Mrs. Gennrich’s damages can is than evidence sustain. ($16,500) larger court, concede, is following this I must of majority is en- case defendant that in such determining precedent elect to take plaintiff judgment a new trial unless titled to in- an jury, least unprejudiced properly for the amount That has assess the evidence. under structed, probably would in excess is damage finding simply where rule been the sustain as well evidence would amount the greatest or of the on the trial perversity has been error there where jury. that this rule be cases changed suggest
I respectfully is us where there no demonstrable now before one like the error on the trial and where is perversity not found. The theory rule is that it preserves of both right parties trial, to a error, free from an unprejudiced jury, heeding the court’s instructions. Plaintiff is the choice of a .given new trial if he desires it. Defendant will aget new trial unless least accepts amount would assess defendant will not be hurt by being required pay amount without a trial. This rule bemay where necessary the excessive award of is the result of damages error or per- because a versity defendant is entitled to a fair trial. But where there has been no error or there would perversity, be no injustice to defendant in an giving plaintiff option *7 a trial or new for an amount judgment fixed the court a fair and reasonable award under the evidence. Such rule would give greater protection to the While he plaintiff. could trial, still choose a new his alternative would be more liberal to him than under the rule. It present would sufficiently protect defendant from the excessive award.
In many cases there is a personal-injury wide be- range tween the and lowest amounts highest which a jury might award under the evidence. Different have dif- people widely of the dollar fering judgments value of disability pain. In cases their many will judgment whether depend upon they believe that the and his witnesses plaintiff exaggerated pain suffered. a case disability such as the present one, the has believed the evidently and has plaintiff fixed award at too simply high figure evaluating injury money.
It is in the interest to avoid undoubtedly public unneces- second trials seek an sary and to earlier determination of the at a which is within litigation of fairness. figure range reason, wide, There is no where the is for range requiring the court to fix a low when the figure has already indi- cated that it thinks that the deserves the highest the evidence will sustain. figure court in case us fixed before figure not be con- would excessive and was evidently ($12,000) fair the trial court. Therefore I would affirm sidered even is as low as the amount would though judgment the rule heretofore followed. required 3, No. v. Respondent, Kempf, District School Joint Appellant. County, Fredonia, Town Ozaukee 2, 1959. 3, 1958 January December