217 Wis. 29 | Wis. | 1935
The appellants contend: (1) That the judgment should be reversed with directions to enter judgment in their favor because the evidence was insufficient to make a jury question as to the negligence of Davis, and that, if not entitled to such relief, (2) that the verdict should be set aside and a new trial ordered on the ground that the verdict is perverse.
(1) We consider that the findings of the jury as to the negligence of Davis in respect to speed, position on the road at the time of the collision, and control of her car are supported by the evidence, however it may be as to the other items of negligence found. The plaintiff testified that Davis was driving fifty miles per hour in rain or mist, on wet pavement ; that as they crossed a culvert immediately before the
(2) The jury found that Dixon was intoxicated. The evidence clearly shows that he was very much so, and that his car was weaving from side to side of the road as he approached the place of the collision. The jury also found that he was on the wrong side of the road when the collision occurred, and this is clearly supported by the evidence. Dixon testified that he was driving with his left wheel “pretty close to the black [center] line,” and that the other car was approaching with its left wheel six inches on Dixon’s side of the line. From Dixon’s testimony that he was so driving and that he saw the other car so coming only seventy feet away, and that in the' face of this situation he did not turn to the right to avoid the collision, it would appear that he was either very much intoxicated or guilty of a wanton and reckless manner of driving. The jury also found that he was negligent in the control of his car, as the evidence clearly shows he was. Under these facts and their overwhelming support by the evidence, we consider that the finding that Dixon’s negligence was not a cause of the collision was manifestly perverse.
Perverseness of the jury also clearly appears from their finding that Davis did not “at and immediately before the
It may be said in passing that under the evidence of this case this question had no proper place in the verdict. The misconduct of Davis, if she was guilty of any, was in getting into the position of danger, not in wilful failure to exercise skill to get out of it. After one has negligently gotten into a position of imminent danger which proximately causes injury, the exercise of skill to avoid injury is immaterial. In such case neither the exercise of the highest degree of skill to avoid injury can exempt from liability nor can the failure to exercise skill increase it. Liability has been already fixed. When one is free from negligence in creating a situation from which injury results, the exercise of such skill as he possesses to avoid injury, exempts him from liability. Eisenhut v. Eisenhut, 212 Wis. 467, 248 N. W. 440, 250 N. W. 441, and cases there cited. But this rule has no application in absence of evidence of lack of experience or skill on the part of the driver. There is no such evidence in this case. Such evidence as there is as to the conduct of Davis after the situation became dangerous is that she did all that she or anybody else could have done to avoid injury.
Although the perverseness of the verdict in this case is plain, it is another question whether it entitles appellants to a new trial. The facts found as to negligence of the defendant Davis and the plaintiff’s freedom from negligence of themselves on their face entitle the plaintiff to judgment against the appellants. The perversity of the jury is only
Were the defendant Davis appealing from a judgment denying her damages upon her counter-claim against Dixon for damages to her person and her automobile, or from a judgment against her in favor of Dixon upon his counterclaim for ninety per cent of the damages suffered to his person and automobile, it would be too plain for argument that she would be entitled to a new trial for perversity of the verdict in the respects above mentioned. By no process of reasoning 'could the verdict be upheld. That a verdict should be perverse so as to require that it be set aside as between two defendants upon their counter-claims and be valid as between the plaintiff and the same defendants is inconsistent. However, setting aside the verdict for perversity need not rest on this inconsistency alone. It was stated by this court in State Journal Printing Co. v. Madison, 148 Wis. 396, 402, 403, 134 N. W. 909, that “where the answer to one material question of a special verdict plainly shows that the jury made the answer perversely or by reason of passion or prejudice, the court may well set the entire verdict aside, and indeed should do so unless satisfied that the answers to the other questions were not affected by such perversity, passion, or prejudice.” Lines v. Milwaukee, 147 Wis. 546, 133 N. W. 592, and McNamara v. McNamara, 108 Wis. 613, 84 N. W. 901, are to the same effect. It may well be inferred that so palpable and gross a perversity as is evidenced in the instant case by the jury’s finding that Dixon’s negligence did not constitute a cause of the collision influenced their findings of the facts bearing upon the negligence of
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with instructions to enter an order for a new trial.