207 Wis. 381 | Wis. | 1932
At about seven o’clock p. m. on the 15th day of November, 1930, the plaintiff was struck by the automobile of the defendant Charles A. Kohn while it was being driven by the defendant Edward Kohn, son of the defendant Charles A. Kohn, as she was crossing Main street in the city of Watertown. The evidence discloses that the plaintiff was on the north side of Main street, and that upon her arrival at the northeast corner of the intersection of Main street with Water street she proceeded south across Main street upon the regular crossing, which was distinguished by parallel lines about eleven feet apart. In the center of the street,, and within these parallel lines, was another rectangle marked off by parallel lines about four feet apart, to indicate a safety zone. The plaintiff testified that before proceeding to cross Main street she looked both east and west for oncoming traffic, but saw no automobiles approaching in either direction. She further testified that upon her arrival at the so-called safety zone she took another observation, saw no automobile approaching from the west, and proceeded on across the street. Before she reached the southerly curb line of Main street she was struck by the defendants’ automobile.
The defendant Edward Kohn, the driver of the automobile, testified that he saw the plaintiff Start across the
The jury found negligence on the part of the defendants and freedom from contributory negligence on the part of the plaintiff. Judgment went in favor of the plaintiff, from which the defendants bring this appeal.
The principal contention relied upon for reversal is that the undisputed evidence reveals freedom from negligence on the part of the defendant Edward Kohn, and contributory negligence on the part of the plaintiff as a matter of law. The plaintiff testified that she looked before she started across the street. She also testified that she looked after reaching the safety zone in the center of the street, and failed to discover the approach, of the defendants’ car. The testimony relied upon to impeach her testimony in this respect is the testimony of the defendant Edward Kohn, who testified that when he first saw her he was in the center of Water street, driving at about twenty miles per hour, from which it is concluded that if she had looked efficiently she could not have failed to discover the approach of the defendants’ car. In other words, it is claimed that her testimony that she looked is refuted by the physical facts in the case, and that she will not be heard to say that she looked when it conclusively appears that if she had looked she would have seen that which was in plain sight.
The difficulty with this contention is, that the only evidence as to the location of defendants’ car when the plaintiff started across the street is the testimony of the defendant
Numerous procedural errors are assigned, all of which have been considered. We will mention those appearing worthy of treatment.
Question 9 of the special verdict was as follows: “If you answer the preceding question in the affirmative, then answer this: Ought the defendant Edward Kohn, in the exercise of ordinary prudence, reasonably to have foreseen that an in
Another serious question arises by reason of certain instructions which the court gave to the jury. The court submitted six questions relating to the contributory negligence of the plaintiff. When the court came to these questions in the course of his charge, he said: “We come now to those questions dealing with the conduct of the plaintiff. At this
The purpose of a special verdict has been frequently elaborated by this court. Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081, and cases there cited. “The special verdict was expressly intended to submit to the jury for answer certain questions of fact, which they are to answer from the evidence, guided by instructions appropriate to the questions only, without regard to the legal effect of their answers upon the ultimate question of the rights of the parties.” Ward v. Chicago, M. & St. P. R. Co. 102 Wis. 215, 223, 78 N. W. 442. That instructions which inform the jury of the effect of their answers to questions submitted in a special verdict constitute error is settled in this court, as will be seen by a consideration of the cases cited in Gutzman v. Clancy, supra, as well as many others to which reference may be made. The remark of the court here criticised, however, falls short of advising the jury of the effect of contributory negligence of the plaintiff upon the ultimate rights of the parties. The remark made did not amount to telling the jury that the contributory negligence of the plaintiff would defeat her right to recover. It simply informed them that an affirmative answer to the' questions from ten to fifteen would constitute contributory negligence on her part as a matter of law. While the remark trenches closely upon the spirit and purpose of the special verdict, and might much better have been withheld, it did not go so far as to defeat the purpose of the law and to constitute reversible error. The question of the contributory negligence of the plaintiff i§
Error is also predicated upon the fact that the evidence did not justify the entry of judgment against Charles Kohn on the ground that it does not appear from the evidence that the defendant Edward Kohn was acting as the agent of the defendant Charles Kohn in driving the car at the time of the accident. The complaint alleges that the defendant Edward was acting as the agent of the defendant Charles at the time of the accident, and the answer denies this' allegation. However, the issue so raised received no attention at the trial. There is casual evidence on the part of Edward that just prior to the accident he had called on Clarence Schimmel on Washington street. This evidence is simply casual, and does not seem to be addressed to the question of whether, at the time of the call, he was acting as the agent of his father, or whether he called at the home of Clarence Schimmel upon his own business or on business of his father. The evidence was rather brought out merely to indicate the movements of the defendant Edward just prior to the time of the accident. Under this state of the evidence, the doctrine of Enea v. Pfister, 180 Wis. 329, 192 N. W. 1018, where it is held that proof of ownership of an auto
Other assignments of error are too trivial to merit discussion.
By the Court. — Judgment affirmed.