Statz v. Pohl , 266 Wis. 23 ( 1954 )

Per Curiam

(on motion for rehearing). Counsel for appellant, Pohl, and his insurance carrier, in a brief submitted on motion for rehearing, suggest that the rule which we have stated as No. (3) is counter" to that declared in Mahoney v. Thill, 241 Wis. 359, 6 N. W. (2d) 239, and that if it is our purpose to overrule the decision in that case we say so in express terms. We had the case in mind when we said in our original opinion, page 27, that “it is not possible to reconcile the conflicting views of this court expressed in opinions dealing with the precise question” — an attack upon a verdict in a negligence case as being inconsistent.

A reconsideration of the rule expressed has convinced us, however, that rule No. (3) is stated too broadly. It should be limited and stated as follows:

“(3) If but one element of negligence is submitted to the jury and the court can find as a matter of law that the party inquired about in the question is guilty of causal negligence and the jury finds that he is not, and in answer to the question on comparative negligence attributes to him some degree of causal negligence, the court should change the answer to the question which inquires as to his conduct from ‘No’ to ‘Yes’ and permit the jury’s comparison to stand with judgment accordingly.”

We pointed out in our original opinion that this case calls for application of the rule which we have designated as No. (1). It follows, therefore, that what we said in our opinion with respect to rule No. (3) is dictum. That is true, of course, when it is considered in the determination of the issues in this action. We repeat, however, that the statement was made and should be accepted as now limited as the considered expression of the court made for the guidance of the profession in the hope that the confusion existing by reason of former opinions may be removed.

Motion for rehearing denied without costs.