Gvora v. Carlson , 255 Wis. 118 ( 1949 )

Action begun May 20, 1948, by Vincent Gvora against Henry Carlson and the Farmers Mutual Automobile Insurance Company to recover damages for personal injuries. From an order granting a new trial, defendants appeal.

Plaintiff, Vincent Gvora, hired defendant, Henry Carlson, to haul some scrap wood from the Y 0 Coal Dock in Superior, Wisconsin, on December 2, 1947. The usual gate to the dock was blocked so the parties used a railway gate. In order to gain access to the dock by this gate the truck had to pass over several railroad tracks. Because this route was not used for trucks or cars there was no planking alongside the tracks. On leaving the dock, the parties had difficulty getting the truck across the tracks because of snow, making the rails wet and slippery. Both engaged in an effort to overcome the difficulty. They placed pieces of wood next to the rail. Then defendant would get into his truck and apply the power slowly with the engine in low gear. Plaintiff stood back — to the rear and at the left of the truck — to watch. Each time the truck would slide to the left toward a gondola railway car which was on the tracks. On the third attempt to cross the tracks, plaintiff's shoulder and upper right arm were pinched between the truck and railway car.

There is a conflict of testimony on whether defendant told plaintiff when he was going to start the truck. Defendant testified that he only told plaintiff to stand clear on the first attempt but that each time before he started he observed the plaintiff standing at the left and to the rear of the truck. Plaintiff testified that he was given no indication of when the truck would be started.

The jury in a special verdict found: (1) With Juror Hjalmer dissenting, that plaintiff was injured by being squeezed between defendant's truck and the railway car; (2) that defendant was not negligent as to lookout but was negligent as to giving warning; (3) that such negligence was a cause of the accident; (4) with Juror McGettigan dissenting, that plaintiff was not negligent as to lookout, and with Juror Ball dissenting, that plaintiff was negligent as to position; (5) with Jurors McGettigan and Ball dissenting, that such negligence was a cause of the accident; (6) with Juror McGettigan dissenting, that plaintiff was forty per cent negligent and defendant sixty per cent; and (7) assessed plaintiff's damages at $3,600.

Since McGettigan dissented on the comparative negligence in question six, Ball on the negligence of plaintiff in question four, and Hjalmer on the injury to the plaintiff in this manner in question one, the trial court on November 20, 1948, ordered a new trial on the ground that only nine of the twelve jurors concurred as to comparative negligence.

Defendant appeals from that order claiming that, as a matter of law, plaintiff is as negligent or more negligent than defendant. The question presented on this appeal is: Should the trial court have granted a directed verdict on the ground that, as a matter of law, the plaintiff was as negligent, if not more negligent, than the defendant? It is considered that the answer should be in the affirmative. On any view of the facts plaintiff's negligence is as great if not greater than the defendant's.

Plaintiff had knowledge of and reason to apprehend the danger to which he subjected himself. He was fully aware of the manner in which he and defendant were attempting to get the truck over the slippery rail. He knew the position of the railroad car and of the truck, and he was responsible for his own position. Twice he had watched the truck slide two or three feet toward the railroad car as defendant attempted to drive it over the slippery track. Yet he deliberately placed himself in danger. Defendant's negligence in not giving notice that he was going to start the truck, which was claimed by plaintiff and found by the jury, was not causal. Plaintiff was as fully aware of the danger as if he had been told by the defendant. Giessel v. Columbia County, 250 Wis. 260, 26 N.W. (2a) 650.

The danger was one that developed by and with plaintiff's acts. His position between the truck and the railroad car must be charged to his failure to exercise ordinary care for himself. Certainly on a comparison, the plaintiff's negligence must be held to be equal to that of defendant.

The defendant was entitled to have his motion for a directed verdict granted. At the close of the trial the facts established as well as the jury's finding of negligence on the part of both plaintiff and defendant "present a situation where it becomes the duty of the court to . . . consider the relative negligence of the parties. In so doing, we are compelled to conclude that the negligence of the plaintiff must be considered as a matter of law to be as great as that of the defendant." Sikora v.Great Northern R. Co. 230 Wis. 283, 291, 282 N.W. 588, and cases cited therein.

By the Court. — Order reversed. Cause remanded with directions to enter judgment in favor of the defendants dismissing plaintiff's complaint.