*1 Guardian, Incompetent, her Yvonne Krolikowski, Krolikowski, Plaintiff-Appellant, Robert F. Chi cago Transportation Company, & Northwestern Defendant-Respondent: Bourgeois, Defendants.†
Supreme Court 28,1979. No. 76-300. Submitted March on briefs —Decided May 30, 1979. 865.) (Also reported in 278 N.W.2d denied, costs, Motion reconsideration on June † $50 1979. *3 appellant For the the cause was submitted on the briefs of Neubecker, Barry Edward F. F. Bruskin and Neu- beeker, Schrinsky McKnight & of Milwaukee. respondent Chicago
For the & Northwestern Trans- portation Company the cause was submitted on the brief Joseph D. of McDevitt and Bor gelt, Powell, Peterson & Frauen, C., S. of Milwaukee.
SHIRLEY ABRAHAMSON, S. J. Mrs. Krolikowski personal injuries suffered and her daughter husband and were killed car, when their which stopped had in front crossing of the railroad gates, pushed onto the rail- crossing by Bourgeois’ road moving car and was struck Chicago Northwestern operated by &
by train jury de- (C&NW). Company, Inc. Transportation Bourgeois both were and the C&NW termined that assigning percent causally negligent, affirm We Bourgeois percent to the C&NW. denying motion C&NW’s order the trial court’s of part of the order and reverse verdict a directed on the issue new trial for a motion C&NW’s negligence. I. :Q0 February 9, Krolikow- p.m. on
At about lowered railroad stopped in front of the car was ski Road and gates Beloit crossing intersection West at the approached train A tracks. C&NW railroad the C&NW engineer, Snodgrass, saw the intersection. crossing the car stopped and saw car at the Krolikowski Bourgeois rear Krolikow- approaching the driven Snodgrass realized that ski’s car. crossing. Snodgrass stop before able
too fast be engine on his the air horn did not blow that he testified Allis of the train because West to alert although blowing horn, prohibits the ordinance Snodgrass permissible use the horn admitted emergency. an he saw the Krolikowski testified that first top “just it.” He about on braked car when was hitting left, rear of the Krolikowski to the the left turned *4 right sent of his own. collision car with the front rolling Wasylko, the the tracks. car onto the Krolikowski just Snodgrass, as train brakeman, alerted and train’s Snodgrass edge Road, of the Beloit set reached the emergency shut off the throttle. The brake 1,360 it for picked up Krolikowski car and carried feet, two and one-half blocks. about
II. denying erred in the trial court contends C&NW for a directed A motion verdict. a directed for its motion granted if there is no credible verdict will be the verdict.1 sustain evidence, most favor taken contends that
C&NW engi Krolikowski, requires ably the conclusion that its making; acting emergency own neer was an not his engineer during which could react was that the time intuitive; or his reaction was instinctive so short engi emergency that under the standard of the rule the negli emergency inaction in neer’s action or not gent law; as a matter that as matter of law protection emergency C&NW was entitled to of the Turowski, doctrine. Wis.2d N.W. Seif (1970). 2d 388
We conclude that there credible evidence jury to find under rule2 that the 805.14(1), Sec. Stats.: challenging sufficiency Motions “805.14 evidence; af- motions op sufficiency op ter (1) verdict. Test evidence. motion No challenging sufficiency evidence as matter of law to support verdict, or verdict, an granted answer in a shall he un- less the that, considering satisfied all credible evidence and reasonable light inferences therefrom in the most favorable party against to the made, whom the motion is there is no credible finding evidence to sustain a party.” in favor of such 2 The trial court negligence instructed on an emer gency as follows: engineers “Railroad of a suddenly railroad train who are con- by fronted emergency, brought an about or contributed their negligence own compelled and who instantly are act to avoid injury guilty collision or are not they if make such choice of ordinarily action prudent or inaction as person might an *5 negligent, is, position person that a in the reasonable horn to the train’s would have blown Bourgeois vicinity of the railroad warn and others crossing. Snodgrass’ testimony he had indicated that to do. The react, time to to redecide what reason to Snodgrass Bour- that realized that record when shows crossing geois going stop too fast possibility collision, that of a he considered there was blowing warning air the train was horn as coming. He he not the horn testified that did blow be- blowing prohibited cause West Allis ordinance the horn. permitted But he admitted that the ordinance him to emergency. blow the horn in an right Bourgeois The front corner of the car hit left rear corner of the Krolikowski car. The could Bourgeois have concluded that if had alerted to the been danger was, than sooner the collision have been avoided. determined, testimony
The trial court on the basis regarding speeds distances, and times involved in incident, elapsed that 1.96 seconds between time Snodgrass realized that too stop fast to and the hit the time Krolikow- Relying upon ski car. the standard reaction times stated in the Handbook, Wisconsin Motorists the trial court found Snodgrass it would take of a second to activate % the air horn and of a second to react to the % horn and take action. court further found remaining .46 second was sufficient time for the Bourgeois car to turn so car, as miss the Krolikowski placed make if position, in the though same even it should after- appear wards not to have been the best or safest course. mind, “You will bear in however, just the rule stated does apply any person negligence wholly whose or in created emergency. One is not entitled the benefit of the rule unless he is without fault emergency.” creation of the *6 taking the the into fact struck account right left rear front. Krolikowski car’s with his that the evidence shows that C&NW asserts play- drinking, tape in had been machine car was his ing music, loud there was a wet road surface. C&NW argues that therefore have taken more than of a react the horn and than second more % enough .46 seconds to turn his car far to avoid Kroli- Notwithstanding kowski car. the evidence to which whole, favor- points, C&NW as a taken most ably Krolikowski, jury’s support find- suffices ing negligence. of causal properly
We conclude that the trial court denied C&NW’s motion for a directed verdict.
HH I—I Krolikowski contends that the trial court erred in granting a trial on new of in the issue justice. interest of governs 805.15, Stats.,
Sec. motions for a new trial granting and the provides order a It new trial. that a party may justice. a in move for new trial of interest (1), Stats., provides: 805.15
Sec. “805.15 (1) may trials. party New Motion. A move to set aside verdict and for a new trial of errors because trial, weight in or contrary because the verdict is to law or evidence, to the of or because of or in- excessive adequate damages, newly-discovered or of because evi- dence, or in justice. granting the interest of Orders grounds new trial on need not other justice, than interest finding granting include a justice.” also interest (2), 805.15 Stats., requires Sec. granting that an order a new justice in the interest specify the reasons prompted the court to so act. granting Every new trial shall order “(2) Order. newa grounds specify No order therefor. reasons or effective unless
trial shall be valid on forth to make order are set prompted the court such In record, in a decision. in the order or written or may deny the award- order, grant, or defer such ing of costs.” granted may A new trial be the interest weight findings great contrary to the are when the though the preponderance evidence, even findings supported by Stewart credible evidence. are ; 461, (1978) First Wulf, 271 N.W.2d Wis.2d Corp. Corp., Land v. Bechtel Wis.2d Wisconsin *7 462, Mut. (1975); Loomans v. Milwaukee 235 288 N.W.2d 660-63, (1968); Co., 656, 158 318 Ins. 38 N.W.2d Wis.2d 458, 462, 642 Popp, 21 124 Brunke N.W.2d v. Wis.2d granting in the interest (1963). The order trial new justice for the of contain the reasons and bases must general the is contained therein that verdict statement great weight against preponderance of the and clear ordinarily by limited to evidence. Review this court is Loomans, specified in the trial order. reasons court’s supra, 38 666. Wis.2d granting in- On review an order justice, not seek to terest this court does sustain verdict of the but looks for to sustain the reasons findings judge. granting trial and order of a court, trial is in the of the trial new discretion may court reverse where a clear abuse of discretion guiding principles supreme is shown. The the the court in its review of the trial court’s discretion were in stated Luedtke, Bartell v. 52 372, 377, 190 145 Wis.2d N.W.2d (1971): “ elementary ‘. . . It supreme is that in such cases the jury’s
court look does not for evidence to sustain the find-
581 ings, sustaining but seeks reasons for the trial court. Essentially, supreme usually court trial defers court’s opportunity decision because trial court’s to observe the evidence, trial and evaluate the and the highly discretionary. ground order is upon If relied one by granting the trial court in the interest new correct, this is sufficient to affirm the order ” of the trial court.’ [Citation omitted.]
No abuse of the trial
if
court’s discretion will be found
the trial court sets forth a reasonable basis for its de
termination that one or more material
answers
against
great
verdict
weight
are
preponder
ance of
Popp,
supra,
evidence. Brunke v.
21 Wis.2d
458, 462-63. There is an abuse of
if
discretion
the trial
grounds
upon
its decision
a mistaken view of the
an
McCarthy
or
erroneous view of the law.
Thompson,
Quick
(1949);
Wis.
The trial court stated in its memorandum decision granted ground new trial on the that Snod- grass was confused period “as to what questions time *8 were addressed.” “It opinion of this Court that this is the kind of the. case which the Court should exercise its discretion grant and interest of dence indicates an on the issue of in the justice. Clearly, of the evi- preponderance emergency situation and a reasonable
choice. attempt by clarify his ac- tivities does not contradiction, create clear but rather a time part confusion on the of the main as witness to what period questions were addressed. This is the The inter- the verdict. evidence to sustain credible its Court exercise then dictate that ests of interest a new discretion negligence.”
justice on the issue quoted paragraph of It is not clear from above testimony engineer’s part of trial court decision what persuaded trial court which creates confusion grant memo- parts the trial court’s a new trial. Other the testi- randum indicate that confusion decision time mony perceived by related to the the trial court Snodgrass emergency trial court brake. The when set Snodgrass’ testimony confused as to concluded that he first realized how fast whether set the brake when driving after or whether he set brake vehicle struck the Krolikowski car. study appears that at From a of the record it several Snodgrass points testified that he set the brake after Bourgeois car car.3 The brake- struck the Krolikowski ' testimony.4 man corroborated this 3 “Q. any At the Kro- time before the vehicle struck emergency you you vehicle, ? set the brake likowski did brake —did
“A. Before he struck the car? “Q. Yeah. “A. No.” (R. 47, Ap. p. Ill) A. “Q. you any your point Did on the activate brake train ?
“A. Yes. “Q. When was that? Approximately “A. about the sidewalk level or in line edge crossing. sidewalk of the “Q. the— With Edge “A. of the road. “Q. talking You about the north the sidewalk? “A. Yes. “Q. And where point? was the Krolikowski vehicle at that “A. The setting Krolikowski vehicle was on the track in the traffic lane. *9 testimony Snodgrass’ which the creating point might a confusion on view as sufficiently great that the conclusion warrant great contrary jury’s was verdict of weight as fol- preponderance of evidence is lows: thought [Bourgeois] “A. I at time that he that gates try
probably crash the to cross front us. “Q. emergency point at Was it [brake] applied ? “A. That I made —I decision was when made the put emergency, yes.” the train in Snodgrass’ unequivocally answer state does actually he set the brake when he first realized Snodgrass merely stop. fast states too testimony, when he decided to set the taken brake. This “Q. away your How far from train? Well, say approximately “A. I would here and between table, maybe. about 12 feet “Q. long sitting How had been there ? 130) just got 429, Ap. p. (R. “A. It had had there.” A. “Q. you you Now, Snodgrass, earlier, I believe testified Mr. your your you shut off at throttle hit when brakes were crossing; right? north sidewalk is that general vicinity, yes. “A. In that “Q. tracks; point, And at that on the Krolikowski car was is that correct? (R. Ap. p. 136.) “A. Yes.” A. 4 “Q. you say And did what to the ? correctly, says, “A. If I remember I ‘That automobile struck car, coming rear of the other and it’s in front of us.’ “Q. you from And made time that that —the comment the. you you engineer, put said to the do if the know emergency position? immediately It hollered, “A. seems to me that I as soon as put application.” (R. her in 444, 445, Ap. pp. brake A. 132, 133.) *10 Snodgrass’ in the context of other clear statements he set the brake after the Krolikowski car reached track and taken in the context of the corrobo- brakeman’s rating testimony, leads us to conclude no there is evidence that brake was set before collision of the cars.
The record shows that court erred in con- cluding Snodgrass’ testimony was confused. Ac- cordingly part we reverse that of the trial court’s order granting justice. a new trial in the interest of
By part denying the Court. —That order a di- affirmed; grant- rected verdict is of the order ing a new trial in the reversed; interest of is cause remanded with judgment directions to enter plaintiff damages favor of the amount ordered by the trial court.
CONNOR T. HANSEN,
(dissenting).
respectfully
J.
I
appears
dissent because it
to me that
this court
re
has
subject
tried this case
judicial
rather
than
it to
review.
reviewing
In
an order
this court
must look for reasons to sustain the trial court’s order.
Loomans v.
Co.,
662,
Milwaukee Mut. Ins.
656,
38 Wis.2d
158
(1968).
N.W.2d 318
Such an order should be re
versed
for a clear abuse of discretion. Hillstead v.
Shaw,
643, 648,
34 Wis.2d
(1967).
150
N.W.2d
In
words,
other
the trial
wrong
court has to be
about the
evidence or the
McCarthy
law.
v.
The trial court interests only appeared the credible evi- that because engineer’s jury’s support verdict was the to the dence testimony. attempt find In an to somewhat confused support the trial to the verdict some credible evidence engineer the concluded that the decided rejected emergency responsible the and therefore was for emergency on to ex- The trial court went the doctrine. preponderance the showed plain that the of emergency a existed and that reasonable an situation reached this con- made. The trial court choice had been referring the to law which concerned clusion after case against great verdict is need for a new trial where the the weight I preponderance of the evidence. sub- actually despite did here, trial court mit that what the granted trial in the the order a new interests the fact that grant justice, the evidence a new because was negligence finding jury’s supported the causal which engineer against great weight the the on preponderance clear of the evidence. This conclusion merely determination, only it is the is not reasonable of the evidence. view sensible
Clearly finding only of causal can be based engineer failing on the inaction of the to blow the Bourgeois major- plaintiff’s horn struck car. The before ity applies opinion emergency doctrine but concludes negligent ordinarily engineer because prudent person faced this have question sounded the horn. I con- soundness clusion un- engineer, fact view not thought Bourgeois reasonably, train. was aware of the lights ringing flashing, The were bells were gate was down. The time factor must also be con- deciding negli- engineer sidered in whether or not the gent. passed The trial court found that 1.96 seconds engineer between the moment the realized going stop was not and the moment struck plaintiff’s car. trial court then found that it would take .75 seconds the horn. to activate I prepared negligent am not a man find because ordinarily prudent fails make person’s choice .75 period seconds. That time allows for instinctive action, Certainly engineer’s testimony choice. indicates that he was able to make decisions after he realized However, stop. was not obviously these place throughout deliberations took seconds, crucial two not within the first .75 This second. leads objection me to second to the verdict and this get court’s decision. Even if one is problem able to *12 concluding engineer finding the negligent, was impossible. finding causal is a re- Such quires carefully the trier-of-fact to construct a chain assumptions, tenuously each of which is so related to together they evidence that lead to a conclusion that is speculative. best type This is not the upon of conclusion which a verdict certainly should rest and is type of against conclusion great weight is preponderance of the evidence. required
The verdict following to make the assumptions: First, within .75 seconds the also only the horn physically hut could have activated necessary undergone thought processes to com- have pull Second, within seconds pel to the horn. .75 him despite loud Bourgeois, condition and the his intoxicated listening horn, to, hear would music appropriate action. comprehend import and take its Bourgeois, Third, remaining that within .46 seconds road sur- despite condition and wet his intoxicated colliding face, would have able to avoid been assumptions car. are to make plaintiff’s difficult These spans used trial court are the time based because unadjusted in- for conditions, and road on normal driver Furthermore, span pavement. the total or wet toxication computed from evidence most of 1.96 seconds was ruling analysis necessary plaintiff, for favorable evi- for directed verdict. There was also on a motion going per miles hour and dence engi- away from 100 feet tracks when the stop. realized that he wasn’t This evidence neer considering great weight be included must preponderance of the clear evidence. majority causally negligent to find a man chooses failing the correct choice make .75 seconds. through holding may process have been arrived at
This legal reasoning highly but it unrealistic and difficult justice. with common to reconcile notions of I affirm the order a new trial. hereby
I am that Mr. Chief authorized state Justice join BEILFUSS and Mr. Justice dis- CALLOW senting opinion.