Peterson v. Kuehne ( 1927 )

The following opinion was filed January 11, 1927:

Rosenberry, J.

The court found, in addition to the matters found by the jury, that upon the undisputed evidence Peterson was injured at the time and place alleged in the complaint; that the automobile of the defendant Kuehne was the cause of the injury, and that Ziesemer was at the time of the accident in the employment of Kuehne. The uncontradicted evidence in the case shows that Czjakowski took the car without the knowledge or consent of Ziesemer and that at the time of the accident Czjakowski was still in control of the car. The plaintiff testified: “I am sure Czjakowski had the wheel of the car when it struck me and was driving the car.” One Udora Dean testified that both men were seated in the car. Another witness, Anna Paul-bicki, testified that one person was in the car and one on the fender, but there was no conflict in the evidence upon the question of who was in control of the car at the time it struck the plaintiff. No one testified that Ziesemer authorized Czjakowski to take the car and use'it for purposes of his own. Upon the undisputed testimony, therefore, it must be held that Czjakowski was a trespasser and that he alone is responsible for the injuries sustained by the plaintiff. The defendants’ motion for nonsuit and motion to direct a verdict should have been granted.

By the Court. — Judgment appealed from is reversed, and cause remanded with directions to dismiss plaintiff’s complaint.

A motion for a rehearing was denied, with $25 costs, on April 5, 1927.