Citation Numbers: 9 N.W.2d 596, 243 Wis. 107
Judges: BARLOW, J.
Filed Date: 4/13/1943
Status: Precedential
Modified Date: 1/13/2023
The actions were commenced on April 11, 1942, by Louisa Braun, as administratrix of the estate of Charles Braun, deceased, and by Louisa Braun in her own behalf, to recover *Page 109 from George J. Baudhuin, sole trader doing business as Cherryland Transport, and Employers Mutual Liability Insurance Company of Wisconsin, defendants, for damages arising out of an automobile collision. The actions were tried together before the court and a jury, and a special verdict rendered. After the verdict, plaintiffs moved to change certain answers in the special verdict and for judgment on the verdict as so amended, and in the alternative for a new trial. Defendants moved for judgment dismissing the complaint. The trial court entered an order on August 22, 1942, granting a new trial and denying all other motions. Defendants appeal. The facts will be set forth in the opinion. Charles Braun was fatally injured as the result of a collision between a ten-ton tractor-trailer combination owned by the defendant George J. Baudhuin, driven by Roy Guth, and a two-door Chevrolet coach, driven by Charles Braun, on Highway 42, about two miles north of the city of Algoma. The collision occurred about 10:30 a.m. on January 31, 1942, as deceased was crossing the highway to enter the driveway to his farm home, which was on the east side of the highway. The main highway runs in a general northerly and southerly direction, with a concrete slab twenty feet in width and gravel shoulders on each side between eight and ten feet wide. There was considerable ice on the highway and private driveway. There was a slight downgrade from a distance of about fifteen hundred feet north to the point of the collision on the main highway, and a sharp grade on the driveway leading to the Braun farm buildings. Braun attempted to enter his driveway but, due to the icy condition and the sharp grade, he was unable to make it and backed *Page 110 down across the highway onto the west shoulder, about one hundred feet north of the driveway entrance. He then proceeded in a southeasterly direction across the highway as defendant's truck was approaching from the north. There is a dispute as to where the collision occurred, plaintiffs claiming that it occurred on the east side of the highway at the entrance to the driveway, and the defendants contending that it occurred on the west side of the highway. The front of defendant's truck struck the Braun car on the left side back of center and the Braun car came to' rest on the east shoulder about twenty-five feet south of the farm driveway. Defendant's truck continued down the east shoulder a distance of about two hundred seven feet south of the Braun car. Broken glass was found east of the center of the highway.
In the special verdict, the jury found defendant's truck driver causally negligent in, (1) driving at an unreasonable rate of speed so as not to have his truck under proper control; and (2) that he operated his vehicle on the east or wrong side of the center line of the concrete roadway, although they found this was not negligence. The jury found deceased, Charles Braun, causally negligent in his failure to keep a proper lookout, and in apportioning the negligence found that Braun's negligence contributed eighty-five per cent to the cause of the collision and defendant's negligence contributed fifteen per cent.
On motions after verdict, the trial court granted a new trial. The trial judge, in his written opinion, found that defendant's own testimony does not sustain the verdict of the jury, as defendant's truck driver testified that the collision occurred on the west side of the center line of the highway and the jury found that the collision took place on the east side of the center line. He concluded that in view of the finding of the jury that the collision took place on the east side of the center line of the highway, the negligence of Braun in failing to keep a proper lookout was inconsistent with their determination *Page 111 that the negligence of Braun contributed eighty-five per cent to the cause of the collision when defendant's entire right of way had been yielded, unless it was proper to say that the deceased placed defendant's driver in a position where he had to act quickly, and his act in crossing the center line of the highway was reasonable, and that this was not the theory on which the case was tried by the defendants.
We cannot agree with the position of the trial court. The evidence shows that defendant's truck was being driven on the west side of the highway, and that the deceased proceeded across this lane of travel. There is evidence to show that the deceased was on the west shoulder of the highway at the time the truck driver first observed him, and he had a right to assume that Braun would exercise ordinary care in all essential respects if he intended to cross this highway. The truck driver was not obliged to reduce his speed, or stop, or alter his course, until it should have become apparent to him that deceased was not going to yield the right of way. Kasper v.Kocher,
There is no motion to review the questions of whether the evidence sustains the finding that eighty-five per cent of the causal negligence was attributable to deceased and that defendant's negligence was not the cause of the collision, as well as the question of whether the damages assessed are grossly inadequate, and the plaintiff is not entitled to have reviewed the court's denials of motions grounded upon these contentions. Noll v. Nugent,
While sec.
Without again indulging in an extended discussion of the facts, we conclude that the case was fully and well tried, and that the answers to the questions in the special verdict are sustained by the facts and are consistent with the conclusion which we have reached. The damages may be conservative, but they are not so inadequate as to indicate passion and prejudice, which would justify a new trial, in view of the fact that the negligence of the deceased was the greater contributing cause of the result.
By the Court. — Order reversed, and causes remanded with instructions to dismiss plaintiffs' complaint.