Christl v. Hauert

164 Wis. 624 | Wis. | 1917

WiNsnow, O. J.

The appellant’s principal contention is-that a verdict in his favor should have been directed because it is undisputed that the defendant was exceeding the statutory speed limit at the time of the accident.

Ch. 110 of the Laws of 1915 was in force at the time of the-a'ccident (though repealed August 20th following by ch. 557' of the-laws of the same year), and this law provided that upon meeting any other automobile on a public highway where the traveled track is less than twenty feet in width, the driver of an automobile should reduce his speed to a rate-not exceeding fifteen miles an hour. This doubtless governed the situation here, although a different provision is-found in sec. 1636 — 49a, Stats. (Laws 1913, ch. 138). The-claim is that the defendant himself testified that he was proceeding at a speed exceeding fifteen miles an hour, and is bound by the admission. We do not think the court would' have been justified in so holding. It is true that the defendant testified that he was going eighteen to twenty miles an hour when he rounded the Gmeiner curve, but he also testified that after rounding the curve he went east about fifteen- or eighteen miles an hour all the way down; that he passed-some boys about 100 feet from the place of collision and then saw that the Steidel car was coming fast and slacked up; that he was going between fifteen and sixteen'miles an hour when he first observed the speed of the Steidel car. He also testified that he did not look at his speedometer. It must be remembered that the question of the speed was entirely a question of judgment, and we do not think it can be said that the defendant’s testimony is so clear upon the question .as to justify the court in taking the question from the jury. Furthermore, a disinterested witness, one Bauerfein, who was walking on the highway between Gmeiner’s curve and the scene of the accident and was passed by the defendant’s car, testified that in his judgment it was going between twelve and fifteen miles an hour.

The plaintiff requested an instruction to the effect that where two persons are guilty of negligence resulting in injury to a third, the fact that one is negligent does not relieve the other from liability, for the law is that recovery may be had from either; therefore, if the injury was caused by the independent and concurring negligence of Hauert and Steidel, the first question must be answered “Yes.” It is sufficient to say that this is an instruction upon the ultimate question of liability and informs the jury of the effect of their answer upon the final result, and hence was properly refused in a case of special verdict like the present. Banderob v. Wis. Cent. R. Co. 133 Wis. 249, 113 N. W. 738. The court in charging the jury upon the first question as to the burden of proof quoted the question and in so doing inserted the word “contributory” before the word “negligence,” so that it read, “Was the defendant guilty of contributory negligence at the time of the collision in question ?” We cannot imagine that this slight error in verbiage was harmful. The jury had the correct written verdict with them in the consultation room and it is almost fanciful to suppose that the insertion of the word by the judge in reading his instruction would be remembered by tbe jury or tbat any significance would be given to it by tbe jury even if it were remembered.

A criticism of tbe charge as to tbe elements of damage in considering tbe fifth question becomes immaterial in view oí tbe conclusions reached upon tbe other questions.'

By the Court. — Judgment affirmed.