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06/01/83 ERVIN M. MILLONIG AND MARY MILLONIG v.

June 1, 1983

ERVIN M. MILLONIG AND MARY MILLONIG, PLAINTIFFS-APPELLANTS-PETITIONERS,
v.
AMUND E. BAKKEN AND SAFECO INSURANCE COMPANY OF AMERICA, DEFENDANTS-RESPONDENTS



Review of a decision of the Court of Appeals. Affirming Heffernan, J. Steinmetz, J. (minority OPINION(S)ing). Justices Roland B. Day and William G. Callow join this Dissenting opinion.

The opinion of the court was delivered by: Heffernan

This is a review of an unpublished court of appeals decision dated July 28, 1982, affirming a judgment of the circuit court for Milwaukee county, Reserve Circuit Judge MICHAEL T. SULLIVAN, presiding, which dismissed the plaintiffs' complaint. We affirm the court of appeals.

This case arises out of an automobile accident occurring on January 18, 1977, in Milwaukee, Wisconsin, when a vehicle driven by Amund E. Bakken rear-ended a vehicle driven by Ervin M. Millonig. Action was brought by Millonig against Bakken. *fn1 At the close of the evidence, Millonig moved for a directed verdict on the premise that the evidence supported the Conclusion that Bakken was 100 percent negligent. The circuit Judge withheld ruling on the motion for the directed verdict and permitted the case to go to the jury. The jury returned a verdict, finding that defendant Bakken was free of negligence. On motions after verdict, Millonig renewed his motion for a directed verdict against Bakken. After a hearing, the circuit court denied the motion to grant the directed verdict and entered judgment on the jury's verdict, dismissing the complaint.

The plaintiff also moved for a new trial because of claimed errors in the instructions to the jury and because of the inadequacy of the amount of damages found by the jury. These motions were also denied.

It was upon the court of appeals' affirmance of the trial court's judgment dismissing Millonig's action that a petition for review was brought to this court. That petition for review was granted.

The record in this case shows that the accident occurred on the afternoon of January 18, 1977, on South 43rd Street in Milwaukee, Wisconsin. Only the two drivers involved -- Millonig, the driver of the lead car, and Bakken, the driver of the following car -- testified in respect to the accident. Millonig testified that he was driving south on 43rd Street and that the traffic was very congested, substantially bumper-to-bumper. He stated that he was proceeding very slowly because of the traffic. When the car immediately in front of him stopped, he stopped also. He said it was not a sudden stop, because he was going at a very slow rate. He testified that, upon stopping, he heard a squealing of brakes behind him, at which point his car was struck from the rear by Bakken's vehicle and pushed into the car ahead of him. Millonig testified that his car sustained some damage and that he sustained injuries to his neck.

Bakken's version of the accident was not much different than Millonig's. He stated that the general condition of the road was icy and slippery. He said he first saw Millonig's car as it passed him. At that time, he stated, he was going about 20 miles an hour. Shortly thereafter, Bakken saw several cars in front of him which were driving bumper-to-bumper and which were slowing down. He said he then slowed down. Just before the accident Millonig was directly in front of Bakken. He saw Millonig's taillights come on, and Bakken immediately applied his brakes; but, nevertheless, he slid into the rear of Millonig's car. Bakken was unable to say what his exact speed was, but he said he was not going fast and that he was going at about the speed of 10 miles an hour. He said the interval between his car and Millonig's at the time he applied his brakes was about the same as that between other cars in the line of traffic. Bakken testified that the very place he had to stop was a slippery spot.

Bakken testified that, when a policeman was called after the accident, it was so slippery that the policeman had trouble staying on his feet. Bakken testified that the policeman who came upon the scene said that he would not charge Bakken with a traffic violation because the road condition was the cause of the accident.

On the basis of all the evidence, there was no contention that Millonig was negligent. Millonig's counsel, therefore, asserted in his motion for directed verdict that only Bakken was negligent and that his negligence was ipso facto 100 percent the cause of the collision. The trial Judge, in accordance with directions of this court in the past, where there was any possible doubt in respect to the outcome of the verdict, withheld his ruling on the motion for directed verdict and permitted the case to go to the jury.

Only the question of Bakken's negligence was submitted, and the jury found that Bakken was not negligent. Accordingly, the trial court entered judgment on the verdict after denying Millonig's renewed motion for a directed verdict. The court of appeals affirmed the trial court, concluding that there was sufficient credible evidence to support the jury verdict that Bakken was not negligent.

The standard to be used by a trial court in determining whether or not to grant a directed verdict and the standard by which the trial court's conduct in that respect is to be reviewed by an appellate court are well established. The general underlying principle is that the jury is to be the trier of the facts and, in any circumstances where the facts are disputed or where different inferences may be drawn from the facts, the jury is to be the factfinder. Accordingly, a trial court may take a matter from the jury in only very limited circumstances. Here the question is whether the trial court erred, on the plaintiff's renewed motion for directed verdict, when it failed to overturn the jury's determination that defendant Bakken was not negligent.

A negligence question submitted to a jury is a mixed question of fact and law, because the jury is confronted with a dual problem: What did the person, alleged to be negligent, do or fail to do in a particular situation, and what would a reasonable or prudent person have done in the same circumstance.

It is thus clear that only in the most apparent situations, where the facts are undisputed and the duty is absolutely clear, a court should take a case from the jury. Our rules in that respect are designed to assist a Judge in making the determination that only the clearest of cases should be decided by the Judge rather than by the jury.

The first of such rules is that a trial Judge, in considering whether a motion for directed verdict should be granted, must view the evidence most favorably to the party against whom the verdict is sought to be directed. Thompson v. Howe, 77 Wis. 2d 441, 448, 253 N.W.2d 59 (1977). Exactly the same rule is applicable in an appellate court on review of the trial court's determination. Chart v. General Motors Corp., 80 Wis. 2d 91, 110, 258 N.W.2d 680 (1977). In Zillmer v. Miglautsch, 35 Wis. 2d 691, 699, 151 N.W.2d 741 (1967), we stated the rule as follows:

"In determining whether or not the trial court was in error in failing to direct the verdict, this court must take that view of the evidence which is most favorable to the party . . . against whom the verdict was sought to be directed."

In Thompson v. Howe, supra, we stated that, in viewing the evidence most favorably to the party against whom the verdict is sought to be directed, the test is whether, "there is any credible evidence which under a reasonable view would support a verdict contrary to that which is sought." P. 448.

Thus, a verdict should be directed only where there is no conflicting evidence as to any material issue and the evidence permits only one reasonable inference or Conclusion. Zillmer, supra at 698.

In Wappler v. Schenck, 178 Wis. 632, 641-42, 190 N.W. 555 (1922), we said:

"It is only when proof is so clear and decisive, and the facts and circumstances are unambiguous and there is no room for fair and honest difference of opinion, that the court may take the case from the jury or pronounce upon the question of negligence as a matter of law."

Even if the evidence adduced is undisputed, if that evidence permits different or conflicting inferences, a verdict should not be directed; and upon review after verdict, a court is obliged to accept the one adopted by the jury. Leatherman v. Garza, 39 Wis. 2d 378, 387, 159 N.W.2d 18 (1968); Lehman v. Sentry Ins. Co., 35 Wis. 2d 96, 150 N.W.2d 333 (1967); Zillmer, supra at 699. Thus, it is only in the most unusual case that a jury's verdict will be upset.

Turning, then, to the facts in this case, we evaluate those facts to determine whether, under the circumstances, a verdict should have been directed finding Bakken negligent as a matter of law. As stated at the beginning of this opinion, we conclude that the trial court correctly denied the motion for directed verdict.

On this review, as in the trial court and in the court of appeals, Millonig argues that reasonable minds could come to but one Conclusion, and that is that Bakken was causally negligent. If we start out with the assumption that all accidents are the result of negligence, and it be conceded that Millonig was not negligent, then it follows, as does the night the day, that Bakken was negligent and that it was error to fail to direct a verdict. This syllogism, however, is defective, because the common law does not impose upon anyone an absolute duty to avoid an accident. The common law does not contemplate that all accidents or mishaps must arise as a consequence of fault.

Lembke v. Farmers Mutual Auto. Ins. Co., 243 Wis. 531, 11 N.W.2d 169, 12 N.W.2d 18 (1943), highlights the rule of law that no one has imposed upon him the absolute duty not to injure or endanger any person or his property. Lembke, at 535. In that case, we quoted with approval the language of Schulz v. General Casualty Co., 233 Wis. 118, 126, 288 N.W. 803 (1939):

"'The duty is not to have his car under such control as to enable him to avoid accident, but to use ordinary care ...


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