199 Wis. 315 | Wis. | 1929
1. The first issue presented is whether there is evidence to sustain the findings of the jury that Oscar Grandhagen was guilty of negligence. The defendants contend that he was required to act in a sudden emergency and that the injuries sustained by Tina Grandhagen were caused by unavoidable accident.
Oscar Grandhagen testified that he was looking ahead
This testimony presents a rather close question of fact. But the court is satisfied, after reviewing the entire record, that it does present a question for the jury.
“An automobile moving at an ordinary speed requires the constant attention of the driver, if it is not to become a menace to the safety of its occupants, as well as pedestrians. The locomotive engineer may contemplate the landscape with comparative assurance that his train will not run into the ditch, but the driver of an automobile may take but momentary glances at his surroundings if he would keep his car upon the highway and preserve the security of its occupants. The dangers incident upon the inattention of the driver of an automobile are very great. Inattention to his driving for a fraction of. a second may plunge the car into the ditch, bringing death or serious injury to the occupants.” Sommerfield v. Flury, 198 Wis. 163, 169, 223 N. W. 408, 411.
In Duby v. Columbia County, 194 Wis. 172, 174, 215 N. W. 819, it was held that a question of fact for the jury was presented where the driver of an automobile failed to
2. The defendant Casualty Company issued a policy of insurance to Oscar Grandhagen under which it was the duty of the Casualty Company to defend this action and to pay the judgment which is here in question. The policy contained the provision that “No action shall lie against the company until the amount of damages for which the assured is liable by reason of any casualty covered by this policy is determined, either by final judgment against the assured or by agreement between the assured and the plaintiff with the written consent of the company.” The answer of the Casualty Company pleaded this provision of the policy in abatement of the action. The trial court overruled this plea and the trial proceeded against both defendants. After the trial had closed and after the decision was rendered in Morgan v. Hunt, 196 Wis. 298, 220 N. W. 224, the trial court dismissed the action against the Casualty Company.
The Casualty Company appealed from the judgment. We do not see that the company had any ground upon which to appeal from the judgment determining that plaintiff had no cause of action against it. But this question is largely an academic one, because the liability of the company to pay the judgment gave it the right to conduct this appeal in the name of the assured. Employers Mut. L. Ins. Co. v. McCormick, 195 Wis. 410, 412, 217 N. W. 738.
3. During the course of the trial counsel for the plaintiff established, over the objection of the defendants, that Oscar Grandhagen was insured by the Casualty Company. We assume that counsel was led to offer this proof by the fact that the court had erroneously refused to dismiss the action against the company. On a new trial the Casualty Company will not be a party, and counsel will have no occasion to refer to the fact of this insurance and should not be permitted to do so. Papke v. Haerle, 189 Wis. 156, 163, 207 N. W. 261.
The court also instructed the jury that “it is the duty of every driver of a motor car upon the highway to keep his automobile at all times under control, and if he fails to have his car under control he is guilty of want of ordinary care.” Here again the court imposed an undue burden upon the defendant. The duty of Oscar Grandhagen was to exercise ordinary care to keep his automobile under control. The instruction imposed the absolute duty to keep the automobile under control at all times, regardless of the question of whether ordinary care was exercised in so doing.
Both of these instructions were given in connection with a question that asked the jury to determine whether Tina Grandhagen was guilty of negligence. But by their terms these instructions clearly related to the negligence of Oscar Grandhagen and must have been so understood by the jury. Jurors cannot be expected to tag each instruction ap it is given and to consider it only in connection with that question.
It may be urged that the erroneous instruction as to the
By the Court. — Judgment reversed, and cause remanded for a new trial.