Ehlers v. Automobile Liability Co.
173 N.W. 325
Wis.
1919
Check Treatment
Winslow, C. J.

The defendant Gold was not carrying passengers on his route at the time of the accident, but had quit for the day and was driving his machine to a repair shop to have some necessary repairs made. By reason of these facts it is claimed by the defendant Liability Company that the machine was not being operated “in the service of a common carrier” at the time of the accident, and hence that there is no liability on the bond.

We are well satisfied that such a construction of the bond would be entirely too narrow. Gold was not going on a private errand nor operating his machine for any private purpose at the time, but was taking it to a repair shop to have it repaired. Reason and good sense seem to us to require the holding that such a machine is being operated “in the service of a common carrier” not merely while it is carrying passengers on its route, but while it is running to a repair shop to receive the repairs necessary to enable it to continue its service as a common carrier.

Near the close of the trial the defendant Liability Company moved to amend its answer by withdrawing certain admissions in the answer, and offered to prove that the defendant Gold sold the car covered by the indemnity bond some six weeks before the accident and purchased a new car which he was using at that time and which was not covered *499by the indemnity bond in suit. The court denied the motion, partly on the ground that the application for the amendment was not timely, and we see no good reason to reverse this ruling. Apparently the defendant knew the alleged facts for a considerable time before the trial of the action began, at least no claim was made that its knowledge had been recently acquired, and it allowed the admission in the answer to the effect that its bond covered the machine used by Gold to stand until the trial of the case was almost finished. We cannot say that under the circumstances it was an abuse of discretion to deny the motion. It is quite apparent that there was no -proof to justify the finding of the jury that the damages to the estate, exclusive of pain and suffering, amounted to $4,000. The evidence was not in dispute on this question and showed that there was expended for medical attendance, nursing, hospital charges, and funeral expenses $779, and that the loss of wages during the five weeks which the deceased lived after the accident was about $50 or $60. It seems very apparent that the jury by mistake transposed the answers to subdivisions (a) and (c) of the fifteenth question. The plaintiff argues strongly that the mistake is so obvious that the court would be justified in transposing the figures and entering judgment on the verdict as so amended. We do not find it necessary to decide this question because of other defects in the verdict, to be now considered, which seem to us to make it fatally inconsistent. It may be said in passing, however, that, conceding that the transposition could not be made, still there seems no reason why the plaintiff should not have been given the option (if the verdict were otherwise sufficient) to remit from the $4,000 item enough to reduce it to $779, the amount undis-putedly proven by the evidence, and to take judgment for the sum of the three items after such reduction.

In our judgment there were damages to two persons here arising out of one accident, hence the limit of recovery would -be $5,000 under the wording of the bond.

*500The difficulty which we find with the case is the manifest inconsistency of certain vital findings.

The jury found by their answer to the first question that there had been no violation of the city ordinance with regard to the lighting of headlights, because the ordinance only required such lighting on the night in question at 5:45 p. m. and the accident happened before that hour.

By their answer to question 4 the jury found that Gold had not violated the speed limit fixed by the city ordinances. This leaves but one finding of negligence in the verdict, namely, the finding in answer to question 6 to the effect that Gold, “at and just prior to the collision,” failed to exercise ordinary care to ascertain whether any person was crossing North avenue so as to come within the course of his automobile. This failure, being found by the answer to the next question to be a proximate cause of the injury to the deceased, would doubtless amount to actionable negligence, but the -difficulty is that it is neutralized by the answers to questions 8 and 10, and especially the latter. If Gold, at and just prior to the collision, failed to exercise ordinary care to ascertain whether any person was crossing North avenue so as to come within the course of his machine, he necessarily thereby failed to exercise ordinary care in the operation of his automobile, because the keeping .of a lookout for people who may be in'the way is a part of the operation of the automobile. It could not be said that a man used ordinary care in the operation of an automobile in a crowded street if he failed to exercise ordinary care in looking ahead to see who might be in the way. This seems certain. This inconsistency is fatal to any recovery by the plaintiff and makes a new trial necessary. The plaintiff argues that the evidence establishes the negligence of Gold as matter of law, but we have not been able to reach that conclusion.

The inconsistency in the verdict brings sharply to the mind the danger always present when a special verdict is long and complicated, namely, the danger of a mistake. The writer *501has been on the trial bench himself and has struggled with the framing of special verdicts and knows that it is not always an easy task. What is said now is said in no spirit of faultfinding or lecturing of trial judges in the performance of their difficult duties, but simply with hope of assisting them if possible. The questions at issue in the present case were not numerous or complicated. There were four fundamental inquiries, viz.: (1) Was Gold guilty of want of ordinary care in the operation of his automobile? (2) If so, was it the proximate cause of the accident? (3) Was the deceased guilty of contributory negligence? and (4) What damages resulted? Doubtless a verdict composed of these four questions and their answers would cover the case. Anderson v. Sparks, 142 Wis. 398, 125 N. W. 925; Guillaume v. Wis.-Minn. L. & P. Co. 161 Wis. 636, 155 N. W. 143. The form of the verdict rests in the sound discretion of the trial court, and that discretion will not be interfered with so long as the issues of fact in the case are covered by appropriate questions. Anderson v. Sparks, supra. In the present case it would be discretionary with the trial court to determine whether the first inquiry should be subdivided so as to ascertain by separate questions and. answers whether the city ordinances as to lighting and speed were disobeyed, and whether, in view of the rain and other conditions at the time, Gold failed to exercise due care in operating his machine as he approached the crossing. .Any further multiplication of questions becomes practically a cross-examination of the jury on purely evidentiary matters.

By the Court. — Order affirmed on both appeals. No costs to be taxed except the fees of the clerk of this court, which are to be taxed and paid by the respondent Liability Company.