The issues raised on this appeal are:
(1) Is there any credible evidence to sustain the findings of causal negligence on the part of the cabdriver Tucker?
(2) If there is such credible evidence, was the negligence of Meyers at least equal to, or greater than, the negligence of Tucker as a matter of law?
(3) If defendant is not entitled to a dismissal on the 'merits, should a new trial be directed because of duplicity in the verdict ?
South Water street has a concrete pavement 40 feet wide and runs in a general northerly and southerly direction. Tucker was driving a cab southerly on this street at about 7:30 in the evening when such cab struck Meyers as he was crossing such street. Meyers resided with his daughter in a house located on the west side of this street somewhat south of the point of the accident. Two eyewitnesses to the accident, Quilling and Armstrong, testified as to the direction Meyers was walking when struck by the cab.
Quilling was seated on his front porch on the east side of the street about opposite to where the accident occurred. He testified to having watched Meyers approach on the east sidewalk until he arrived in front of Quilling’s house; that Meyers then started to cross diagonally across the street; that Quilling saw the cab approach from the north driving south when such cab was 150 feet north of the point of the *509 accident; and.that Meyers was struck when he was nearly across' the- street. Armstrong, called as a witness by the defendant, on the other hand, testified that Meyers was attempting to cross the street from the west to the east and stepped out from-in front of a car parked at the west curb facing south, and that he was struck when but 10 feet east of the west curb. . -
On this appeal, it is only necessary for this court to consider such evidence that supports the findings attacked.
Heibel v. Voth
(1955),
A traffic officer testified that the only visible damage to the cаb, as a result of its striking Meyers, was to the right-windshield' pillar and to the lower right-hand corner of the windshield which was broken. It is thus apparent that it was the right -side of the-cab, and not any portion of the front thereof, which struck Meyers. However, there was testimony that the cab swerved to the left at or just before the moment of impact, which explains why the front of the cab apparently did not strike Meyers.
The only evidence tending to establish negligent speed upon the part of the cabdriver, Tucker, is the testimony of Quilling. He was a former county clerk of Dunn county and a retired merchant who had driven automobiles for many years. Quilling testified that the cab was traveling at a high rate-of speed which he estimated at 40 to 45 miles per hour. He had an opportunity to first view the cab and did so observe it when it was 150 feet north of the place of impact. On the other hand, he testified that the cab came to a stop in a distance of 10 to 15 feet after the impact. It is a matter of common knowledge that it is a physical impossibility to *510 bring; a moving automobile traveling at 40 miles per hour to a stop in a distance of 15 feet under the circumstances-which existed here.' However, there is the possibility that) Tucker may have greatly reduced his. speed prior to the strik-; ihg of Meyers as well as the likelihood that Quilling overestimated the cab’s speed.. The credibility of Quilling’s testimony,-and the weight to be accorded it, were for the jury. We are unable to rule as a matter of law that there is no credible’ evidence to sustain the jury’s finding of causal negligence on the part of Tucker as to speed.
' When wé come to consider whether there is credible evidence to sustain the findings that Tucker was causally negligent as to lookout" and management and control we are faced with the presumption that a decedent driver is pre-. sumed to have exercised' due care in both respects. Such presumption disappears from the case when evidence is introduced from which the jury may reasonably infer that the deceased driver was negligent in the respect at issue.
McCarty v. Weber
(1953),
In
Weber v. Mayer
(1954),
In the instant case there was a swerving of the cab to the left prior to thе impact. Furthermore, the jury were entitled to draw the inference from Quilling’s testimony that there had been a reduction in speed of the cab just prior to the accident, because of the cab having stopped after the impact in a distance of 15 feet. The swerving and the reduction of speed indicate that Tucker saw Meyers at some point prior to the accident. Where there is evidence giving rise to the inference that a decedent driver did observe the object collided with prior to the impact, the jury should not be permitted to speculate as to the point where such observation was made by decedent. The presumption that Tucker exercised due care as to lookout has not been rebutted, and, therefore, it must be аssumed that, because of such presumption, he did see Meyers in time to have taken effective action to avoid striking him. It necessarily follows that there is credible evidence to support the finding as to Tucker’s causal negligence ,with respect to management and control.
In cases involving a driver whose lips have not been sealed by death, it is possible to sustain jury verdicts finding such operator guilty of negligence as to both lookout and management and control. Cases reaching such result are
Robinson v. Briggs Transportation Co.
(1956),
We are of the opinion that in cases involving a deceased driver, under a fact situation similar to the one here presented, the mere happening of the accident supports a finding of either causal negligence as to lookout or management and control, but not both. As to which of these two grounds of causal negligence a jury should be permitted to find has caused us no little perplexity and concern to solve. In reaching the result we have, that the negligence consisted of management and control, and not lookout, we are fully aware of the fact that a fairly convincing argument could be made for the opposite result. However, we prefer the conclusion arrived at herein.
While it may be repetitious, we restate our conclusion as follows: 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.
(Vogel v. Vetting
(1953),
We thus have a duplicitous verdict in the case at bar with respect to the causal negligence of Tucker. While this may be material in considering the issue of directing a new trial, it has no signifiсance in considering whether the defendant is entitled to a dismissal on the merits. This is because any finding of causal negligence on. the part of Tucker is sufficient to support the verdict.
Counsel for the defendant strongly urge that the negligence of the pedestrian Meyers must be held as a matter of law to be at least equal to or greater than the negligence of Tucker. Much emphasis is placed upon the failure of Meyers to have yielded the right of way to the cab as he was required to do by sec. 85.44 (4), Stats., which provides as follows:
“Every pedestrian crossing a highway at any point other than a marked or unmarked crosswalk shall yield the right of way to vehicles upon the highway.”
In the following cases this court has refused to find as a matter of law that the negligence of а pedestrian crossing a highway other than at a crosswalk, who failed to yield the right of way to an approaching motor vehicle and was struck by the same, was equal to or greater than the negligence of the driver.
Albrecht v. Tradewell
(1955),
Defendant’s counsel cite
Crawley v. Hill
(1948),
■ The case of
Weber v. Barrett
(1941),
Lastly, we must pass upon the contention advanced that the defendant should be awarded a new trial because of the error of the trial court in submitting a duplicitous verdict as to Tucker’s negligence. There is no question but under the decisions of this court that defendant would be entitled to such new trial if it has not waived its right to raise such issue on this appeal.
We find that counsel for the defendant did properly object on the record to the form of the verdict before argument to the jury, which objection specifically pointed out to the trial court the manner in which the verdict was duplicitous. How *515 ever, we do not consider that the error of a duplicitous verdict was properly called to the trial court’s attention after verdict.
In addition to moving after verdict for judgment notwithstanding the verdict, and for the court to change certain answers, and upon the verdict as so changed for a judgment of dismissal, defendant did move in the alternative for a new .trial. The alternative motion for a new trial specified five grounds in support thereof, none of which specifically referred to a duplicitous verdict. We do not deem that merely alleging, as did defendant, in such a motion that the verdict is contrary to the evidence and contrary to law is sufficient in itself to properly raise the issue of duplicitous verdict before the trial court. No memorandum opinion passing on the motions after verdict was filed by the learned trial judge, and the order for judgment throws no light on whether the issue of duplicitous verdict was briefed or argued by defendant’s counsel after verdict on the question of granting a new trial for error. In fact, the record before us is entirely silent on this point.
As to those errors which must be raised by a motion for new trial as a condition precedent to having this court pass thereon as a matter of right, and not discretion, we are constrained to hold that the burden is upon the party alleging error in this court to affirmatively establish by the record before us that such error was specifically called to the trial court’s attention in considering the motion for new trial. Where the motion for new trial is couched in such general terms as not to do this, but the claimed error was specifically pointed out in a brief filed, or oral argument madе, in support of the motion, one way of meeting such burden would be to have the bill of exceptions recite such fact.
Is the submission to the jury of a duplicitous verdict the type of error which must be properly raised in the trial court after verdict in order to have this court award a new trial *516 therefor as' a matter of right, and not discretion? Viewed from the standpoint of which result would most accord with our conception of the proper administration of justice, the answer must be that it is. Appeals to this court are expensive and time consuming. A procedural device which affords an opportunity to a trial court to correct its own errors by directing a new trial, without the necessity of an appeal to this court to reach the same result, would seem to be in the public interest. During the course of a trial the trial judge often is required to “shoot from the hip” in making his rulings without the benefit of briefs or time to make an independent research of the authorities. A very different situation prevails when the trial judge has before him after verdict a motion for new trial grounded upon alleged error. Time will then permit the preparation and filing of briefs by counsel, and for the judge to do independent research of his own.
We consider most apropos the following quotation from 39 Am. Jur., New Trial, p. 42, sec. 17, appearing in Mr. Justice Gehl’s opinion in
Ferry v. State
(1954),
“ ‘While the primary object of a motion for a new trial is to secure re-examination of issues of fact, it serves also to bring to the notice of the trial court errors which may have been committed in the course of the trial, and enables the court to correct such errors without subjecting the parties to the expense and inconvenience of prosecuting review proceedings. In many jurisdictions a motion for a new trial is a condition precedent to a right to have the case reviewed in an appellate court. In other words, under the practice in most jurisdictions, it was the duty of counsel to give the trial court an opportunity, by motion for a new trial, to correct whatever errors it may have made in-respect of matters which may properly be made the grounds of such a motion.’ 39 Am. Jur., New Trial, p. 42, sec. 17.”
When we approach the problem from the standpoint of attempting to find a controlling principle laid down in the *517 past decisions of this сourt we discover a chaotic inconsistency which cries out for rectification.
In
Plankinton v. Gorman
(1896),
However, we find that such principle laid down in
Plankin-ton v. Gorman, supra,
has been quite frequently departed from by this court. The giving of an erroneous instruction to a jury is an error committed by the court and not the jury. Nevertheless, we have held that such error cannot be raised on appeal in the absence of a motion after verdict in the trial court pointing out such error.
Graves v. State
(1860), 12 Wis. *591, *595;
Mossak v. Pfost
(1950),
If failure to submit a requested question in a special verdict cannot be raised on appeal without first having moved for a new trial after verdict in the trial court on such ground, there would seem to be no logical basis for invoking a different rule with respect to submitting a duplicitous verdict which included questions which should not have been submitted.
We think that the time has come to repudiate the cliche, that errors by the сourt are reviewable without necessity of first grounding a motion for new trial thereon, because we consider it to be highly erroneous. 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 grаnting a new trial. Sec. 251.09, Stats., authorizes this court in its discretion to grant a new trial whenever we deem that there has been a miscarriage of justice. The exercise of such power is not dependent on whether the aggrieved party protected his rights by objection or motion in the trial court. While this power is sparingly exercised by this court, we do not hesitate to employ it in hardship cases to рrevent a miscarriage of justice.
We decline to exercise our power to direct a new trial in the interests of justice in the instant case for the simple reason that we are not convinced that there has been any miscarriage of justice here, in spite of the duplicitous verdict returned. This is because we consider that there is strong likelihood that the jury might have made the same apportionment of negligence between Tucker and Meyers if the lookout question had been omitted from the verdict.
By the Court. — Judgment affirmed.