201 Wis. 214 | Wis. | 1930
Actions by Gerbing and his wife for injuries sustained in a collision between plaintiff's automobile and defendant's truck alleged to have been caused by negligence of the driver of the truck. Gerbing was driving southwest on a county trunk highway. His wife, their small child, and Rev. Golnick were riding with him. The defendant's truck was going north on a state trunk highway. The roads joined at an angle of approximately forty-five degrees. The collision occurred south of the apex of the angle made by the intersecting roads. A grass plot approximately ninety by seventy by sixty feet occupied the angle. At the north of the plot was a lead connecting the two roads, not graveled, little used, divided at the west end into two leads to the north and south on the state trunk. There were no stop signs at the intersections. A bank and some bushes at the east side of the county trunk road shut off the view somewhat. Both roads were graded and graveled. The collision occurred about four o'clock in the afternoon shortly after the beginning of a drizzling rain. There was no other traffic.
From the evidence it might reasonably be inferred that Gerbing was driving twenty-five miles an hour as he approached the intersection and that he slackened his speed to fifteen miles and shifted gears from high to intermediate. He saw the truck when it was 250 feet away. He crossed the middle of the state trunk road and was squared away south on his right side of the road when the collision occurred. The truck was traveling forty miles an hour on its left side of the road and turned further to the left just before the collision. Gerbing turned his car further to the right partly on the shoulder of the road in effort to avoid the collision. The tracks of the truck were plainly visible after the collision.
The jury by special verdict found the driver of the truck negligent as to speed, lookout, line of travel, and in turning *217 left immediately before the collision, and that each of these negligent acts was a cause of the collision; found the plaintiff not negligent; and assessed the husband's damages at $948.15 and the wife's at $2,000. The appellant lays thirteen grounds of error. Only one of them is to the point that the findings of the jury as to negligence are not supported by the evidence. This is in effect that Gerbing was guilty of contributory negligence as matter of law, but it is manifest from the above statement of facts that his negligence was a jury question.
It is urged that a mistrial should have been ordered because the fact that the defendant carried indemnity insurance was injected into the case. Two questions were put, one to defendant on adverse examination, and one on the trial whether he made some statement at the sheriff's office pertaining to the collision. Objection was made and properly overruled. The answers made were not responsive and stated that defendant had insurance. Counsel moved to strike out the answers and for a mistrial. The court struck out the answers so far as they referred to insurance but denied the mistrial, and stated to the jury correctly and very fully and forcibly that insurance had nothing to do with the case. In view of the very full and forceful statement to the jury we cannot say that the court was not justified in denying the motion.
Error is claimed because the court refused to instruct in substance that as plaintiff was making a left turn on entering the state trunk road and required by statute to keep to the *218 right of the intersection in making his turn, he was bound to take the lead north of the grass plot to get onto the state trunk, because the center of the intersection is in the grass plot. This contention is manifestly without merit. There are plainly three intersections involved, one at each angle of the triangle. A vehicle using the north lead turning left must keep to the right of the intersection of the roads at this point.
Appellant claims the court erred in receiving incompetent evidence consisting of "conclusions" of witnesses. Questions in form calling for conclusions were asked and answered over objections. But in such cases the conclusion was plainly drawn and the only one inferable from facts previously testified by the witness. If a witness has testified that tracks made by an automobile were left of the center of a road, it is manifest that the automobile was left of the center when it made the tracks, and it is quite harmless although it be a conclusion for the witness to say that the automobile went to the left of the center of the road although he did not see it. The errors claimed under this head are all of this nature.
Error is claimed because the court permitted the jury to assess doctor's bills as an element of plaintiff's damages in the absence of evidence of the reasonable value or necessity of the services charged for. The weight of authority seems to be that where the character of the injury and of the treatment and the services of the physician and the amount paid for the service are fully proved, this constitutes evidence from which the jury may allow damages although there is no proof of either necessity or the reasonable value of the services. Georgia R. E. Co. v. Tompkins,
Error is alleged in the receipt of evidence as to the speed of the truck. Some of the testimony was to the effect that the truck was going fast or real fast and that it was speeding along. These answers are of course indefinite and fall within the letter of the condemnation inRonning v. State, *220
Error is claimed because counsel for the plaintiff in arguing to the jury referred to a lump and scar on Mrs. Gerbing's shoulder as permanent while there was no evidence that they are so. The court instructed the jury in substance that there was no evidence of future disability except the lump on the shoulder, and no evidence as to how long it would continue and that they should make no material allowance *221 for that. This rendered harmless the statement complained of, if it was made. It is not to be presumed that the jury gave more heed to a mere statement of counsel in argument than to a specific direction of the court.
Error is charged because the trial court did not properly instruct the jury respecting negligence and particularly because he did not define the term "ordinary care." The first question of the special verdict involving negligence was, in short: "Was the party negligent?" The second was: "Ought the party reasonably to have foreseen that the negligent act (if any) found might probably cause injury?" The trial judge instructed that violation of a statutory regulation was negligence as the term was used in the question. He then said respecting lookout, as to which there is no statutory regulation, that a driver must "keep a careful lookout for dangers and so operate his car that he does not endanger the life, limb, or property of any other person. In other words, he is charged with the duty to so operate, manage, and control his car that under the circumstances present he creates no reasonable cause to foresee that personal injury or damage might probably result from his conduct. Failure to perform this duty constitutes negligence." This instruction is claimed to be incorrect. It was intended to define negligence as it is defined inHamus v. Weber, supra. The idea is not expressed with the clarity that it was there expressed, but what we gather from it is that a driver should not do any act or omit any precaution which from the circumstances he ought reasonably to foresee might probably cause injury. This requires him to use ordinary care and tells what ordinary care is. As said in theHamus Case respecting situations like that here involved:
"One must take ordinary care towards others, of course, but one must also take care not to do any act or omit any precaution when from the circumstances it would reasonably appear to an ordinarily intelligent and prudent person that such act or omission might probably cause an injury to somebody. *222 Hence ordinary care and the element of reasonable anticipation, as defined in the definition of negligence here involved, are the same. Otherwise we have two kinds of care in negligence, ordinary care and extraordinary care, and it is fundamental that one is never bound to exercise extraordinary care."
We adhere to the ruling in the Hamus Case and perceive no error in the instruction.
It is claimed that the court erred in permitting the cross-examination of a witness of defendant, but we perceive none. And it is lastly urged that the award of damages to Mrs. Gerbing is excessive. The award was no doubt liberal, but it was upheld by the trial court and we consider that it was within the limit to which the jury might properly go.
Notwithstanding that some errors occurred upon the trial the whole record makes it clear that the jury's findings are well supported by competent evidence. Under sec. 274.37, Stats., providing that no judgment shall be reversed for error unless after examination of the whole record it shall appear that the error complained of has affected the substantial rights of the party seeking reversal, it is considered that the judgment should be affirmed.
By the Court. — The judgment of the circuit court is affirmed.
FRITZ, J., dissents.