Fronczek v. Sink , 235 Wis. 398 ( 1940 )

This action was begun on November 4, 1937, by Joseph Fronczek, plaintiff, against Mildred L. Sink and her insurance carrier, Metropolitan Casualty Company of New York, defendants, to recover damages for injuries sustained in an automobile accident. There was a verdict for the plaintiff upon which judgment was entered on December 11, 1939, in the sum of $10,370.57, from which the defendants appeal. The facts will be stated in the opinion. The following opinion was filed May 7, 1940: The case was here upon a former appeal from an order granting the plaintiff a new trial, from which the defendants appealed to this court. The order of the trial court was affirmed without opinion. On the first trial the jury found that the defendant Sink was negligent, (a) in respect to lookout; (b) in respect to speed; and (c) in failing to yield to the plaintiff the right of way. The same jury found the plaintiff negligent in respect to keeping a sufficient lookout. Upon the second trial the jury found the defendant negligent in respect to speed and in respect to keeping a proper lookout and proper control of her automobile, but found that she was not negligent with respect to yielding the right of way to the plaintiff pedestrian. The jury also found the plaintiff Fronczek negligent in respect to yielding the right of way to the defendant Sink and in respect to maintaining a proper lookout for traffic. Both juries apportioned the negligence twenty-five per cent to the plaintiff and seventy-five per cent to the defendants.

Upon this appeal we were asked to say that as a matter of law the negligence of the plaintiff was at least equal to that of the defendants. The defendants rely upon the case ofHustad v. Evetts (1939), 230 Wis. 292, 282 N.W. 595. In that case the jury found the plaintiff negligent in alighting from his truck, found the defendants negligent in respect to speed, lookout, and management, and apportioned the negligence twenty-five per cent to the plaintiff and seventy-five per cent to the defendants. Upon appeal this court held that the negligence of the plaintiff was at least equal to that of the defendant and denied recovery. No rule of thumb can be laid down with respect to the apportionment of negligence between a plaintiff and a defendant. A plaintiff may be guilty of exceeding the speed limit traveling at twenty-five miles an hour. In the same case the defendant may be guilty of exceeding the speed limit and he may be traveling sixty miles an hour upon a city street. Because they are both found negligent in the same respect, can it be said that the negligence of the plaintiff equals that of the defendant? While plaintiff in the assumed case was negligent because he was exceeding the speed limit, his speed may have had very little causal effect and the injuries sustained by the plaintiff may be due almost entirely to the excessive speed of the defendant.

In Hustad v. Evetts, supra, the court said (pp. 296, 297):

"That the plaintiff was negligent seems to us beyond controversy. It is not contended otherwise by plaintiff's counsel. That negligence plainly was stepping out on the left side of a standing automobile into the middle of a street without looking to see whether another automobile was approaching. . . .

"Greater negligence can hardly be conceived than for a deliveryman experienced in his work, thirty-three years of age, intelligent, and in full possession of his faculties, in making a delivery to step, without looking for traffic, from the left side of his delivery truck standing in a street, directly in the path of an oncoming automobile twenty feet or thereabouts away, traveling even at twenty miles per hour, which was the lawful speed at the place of the instant accident."

The facts in this case in no way parallel those in Hustadv. Evetts, supra.

We have given careful consideration to the facts in this case. Two juries have assessed the damages and apportioned them on the same basis as between plaintiff and defendants. We see nothing in the facts of this case from which it can be said as a matter of law that the negligence of the plaintiff was equal to or greater than that of the defendant. It is not necessary to restate the principles so well stated in Hustad v.Evetts, supra.

By the Court. — Judgment affirmed.

The following opinion was filed June 24, 1940: