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Rico v. Midwest Security Insurance Co., 11/11/2004
Olga Rico appeals from a judgment dismissing her personal injury action against Thomas Benner and Midwest Security Insurance Company. We affirm.
. Rico and Benner agreed during their trial testimony on the basic facts of the accident. Each testified that Rico was driving north on a four lane Racine street, in the left lane, and Benner was behind her; that a tractor-trailer attempting to make a right turn from the right lane moved at least partly into the left lane; that Rico came to a complete stop; and that Benner collided with her from the rear. The parties further agreed that Rico's car then moved forward to strike the trailer portion of the truck, causing damage to her vehicle. However, they disagreed as to whether that movement was caused by the impact from Benner's vehicle. Benner testified that he was almost stopped when he struck Rico's vehicle; that the impact was minor; and that after the impact Rico's car "took off like a rocket" and "there wasn't a skidding sound. More of an acceleration sound going to the semi." He said the distance Rico's car traveled to the truck was approximately twenty feet. Rico, in contrast, testified that she did not step on the accelerator and that the force of the impact from Benner caused her car to move forward into the truck.
. The jury attributed the negligence 80% to Rico and 20% to Benner. Rico argues that the trial court erred by declining, at the close of evidence, to find Benner causally negligent as a matter of law and by allowing the jury to consider the issue of Rico's comparative negligence. In reviewing the sufficiency of the evidence, the trial court is to consider all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made and may grant the motion only if there is no credible evidence to sustain a finding in favor of such party. Wis. Stat. § 805.14(1) (2001-02).*fn1 Rico discounts Benner's testimony about the forward movement of her vehicle because it was not consistent with his earlier statements. However, such inconsistency does not make his testimony incredible; it merely creates a credibility issue for impeachment of his testimony to be decided by the fact finder.
. We conclude that the trial court properly declined to find Benner negligent and allowed the jury to decide the issue of comparative negligence. The record contains photographs of Rico's vehicle. One photograph is of the rear of Rico's vehicle. Although the parties did not testify as to when this photograph was taken, both testified that it accurately shows the condition of Rico's vehicle after the accident. The photograph shows no visible damage of the type typically caused by collision, other than possibly a few paint scratches. Other photographs show Rico's vehicle from the front. Rico testified that these photographs accurately depict the damage from the accident. The photographs show impact damage and structural deformity from a fairly narrow object pushing what appears to be 6 to 12 inches into the bumper and other parts. These photographs alone constitute credible evidence that (1) the impact from the rear was not sufficient to cause Rico's injuries and (2) the impact from the rear was not sufficient by itself to cause Rico's car to move forward twenty feet and sustain the degree of frontal damage shown by the photographs. In other words, there is a basis to find that, regardless of whether Benner was 100% negligent in causing the initial impact, that impact did not cause Rico to suffer injuries and did not cause the later impact with the truck in front of her.
. There is also other evidence beyond the photographs that supports these conclusions. Benner was driving a 1987 Sierra picku
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