Marhofke v. Brucken , 191 Wis. 442 ( 1926 )

Owen, J.

The question presented is purely one of fact. The defendant strongly urges that the evidence disclosed a case for the jury and that the court was not justified in disturbing the verdict. The verdict itself is inconsistent and contradictory. Upon the plaintiff’s cause of action it finds that the defendant failed to exercise ordinary care but that such failure was not a proximate cause of the injury, while upon the defendant’s counterclaim it finds that the defendant was guilty of contributory negligence. The same findings are made with reference to the plaintiff’s negligence. It is a legal impossibility for a plaintiff to be guilty of contributory negligence in a matter of this kind and yet not be guilty of a failure to exercise ordinary care constituting a proximate cause of the injury or damage. Loehr v. Crocker, ante, p. 422, 211 N. W. 299. The verdict, therefore, is valueless. It finds both ways on the question of the negligence of the respective parties and can be given no weight whatever. But even though that be true, the court is not justified in deciding these issues as a matter of law if the evidence in fact discloses a jury question. The trial court evidently felt that there was no ground for holding the plaintiff guilty of any negligence próximately causing the collision, and upon a review of the record we arrive at the same conclusion. It is difficult to understand upon what theory the jury found the plaintiff guilty of contributory negligence, even though the testimony of the defendant be accepted as true. According to the defendant’s testimony, neither plaintiff nor defendant was driving to exceed fifteen miles an hour. When the dog was under plaintiff’s car, defendant’s truck was forty feet behind. The defendant thought plaintiff would stop, he slowed down his own car to ten miles an hour as a result of such expectation, and plaintiff drove at least two rods from that time until the time the defendant claims he stopped. If this testimony be true, it is difficult to perceive how the collision could have occurred if defendant exercised ordinary care. Even though the plaintiff gave no signal of his intention to stop, if defendant’s testimony be true, such signal would have served no purpose because the defendant testi•fies he expected he would stop. If defendant’s testimony be true, the plaintiff brought his car to a gradual stop within two rods. The defendant had the same distance plus forty-feet in which to bring his truck to a stop. He does not testify that this was impossible. He further testifies that there was ample room for him to turn from his line of travel and avoid the collision, but he made no effort to do so. The conclusion is irresistible that the collision resulted solely from defendant’s inattention. At any rate it seems clear that the conduct of the plaintiff was not a proximate cause of the collision, from which it results that the trial court was justified in so dealing with the verdict and granting judgment in favor of the plaintiff.

By the Court. — Judgment affirmed.