Groeschner v. John Gund Brewing Co.

173 Wis. 366 | Wis. | 1921

Owen, J.

It is first argued that the deceased was guilty of contributory negligence as a matter of law and that a verdict should have been directed in favor of the defendant. The deceased was proceeding north on the east side of Third street at a moderate rate of speed. The defendant’s truck was going south on the west side of Third street, and as it approached the intersection of Third and State streets the driver thereof turned to the left for the evident purpose of cutting the corner as he turned east on State street, and the collision occurred within a few feet of the northeast corner of the intersection. In this the driver of the truck was guilty of a palpable violation of the law of the road. His negligence is unquestioned.

It is argued on the part of appellant that the deceased, if he had looked, could have seen the truck in front of him, and that his failure so to do constituted negligence as a matter of law. At the same time it is said that the intersection of Third and State streets is one of the busiest thoroughfares in the city of La Crosse. If this is true, manifestly the driver of the motorcycle was required to be sufficiently alert to avoid traffic of a character which he was required to anticipate. The deceased was not required to anticipate that he would encounter a truck on the wrong side of the street. At any rate, we are clear that he cannot be held guilty of negligence as a matter of law. It has been said by this court that questions of negligence arising out of automobile accidents are peculiarly for the jury, and that such questions will not be decided as a matter of law except under the clearest circumstances. Shortle v. Sheill, 172 Wis. 53, 176 N. W. 304. The case was properly submitted to the jury.

It is urged that the court erred in not granting the defendant’s motion for a change of venue. This case was instituted by Otto M. Schlabach, Esq., as attorney for plaintiff. It was not reached for. trial until about the fifteenth day of the term. The defendant then discovered that Jesse E. Higbee, Esq., a son of the presiding judge, had been employed to assist- Mr. Schlabach in the trial, of-the -.plaintiff ’s ■case. Upon learning this the defendant filed an affidavit of prejudice, sworn to by the secretary of the company, in which the deponent stated that his ground for belief that defendant could not have a fair trial of said action on. account of the prejudice of the presiding judge, was based upon the fact that Jesse E. Higbee, who had been retained to assist plaintiff’s counsel, was the son of the presiding judge, and that the information that he was to assist plaintiff’s counsel had come to deponent subsequent to the commencement of the term, for which reason he was not able to make the affidavit on or before the first day of the term. The trial judge denied the motion on the ground that the application was not made on or before the first day of the term.

The right to a change of venue is purely statutory and can be insisted upon only where the conditions prescribed by statute authorizing the change exist. Sec. 2625, Stats., requires that an application for a change of venue because of the prejudice of the trial judge must be made on or before the first day of the term when the judge named in the affidavit is the presiding judge in the judicial circuit in which the case is pending. The statute makes no exception in instances where information giving rise to the belief of prejudice on the part of the presiding judge come to the litigant after the beginning of the term. The terms of the statute are plain and definite and afford no occasion for judicial construction.

It is further contended that the judge was disqualified under the provisions of sec. 2623, Stats., which provides that the place of trial shall be changed when the judge is related to either party to the action. It is claimed that Jesse E. Hig-bee, Esq., had such an interest in the action as to constitute him a party thereto within the meaning of that section. This argument is based upon testimony given by plaintiff to the effect that her husband left no estate, and from this the conclusion is assumed that Jesse E. Higbee, Esq., must of necessity have an interest in the judgment. Whether an attorney who prosecutes a case upon a contingent fee has such an interest as. constitutes him- a party to the litigation within the meaning of this section- we need' not determine, for the reason that there is no evidence -in the case from which it can be concluded that Jesse E. Higbee is so compensated or has such an interest in the judgment. This question was not raised in the court below, and no effort was made to show that Jesse E. Higbee was to be compensated for his services in any manner giving him an interest in the judgment. No error resulted from the refusal of the trial judge to change the place of trial.

• The refusal of the court to receive in evidence the verdict .of the coroner’s jury,- summoned to take an inquest on the view of intestate’s dead body, is assigned as error. Whether the verdict.of. a coroner’s jury is admissible for any purpose — a proposition negatived by the great weight of authority. (Hollister v. French, 76 Cal. 649, 18 Pac. 855; Rowe v. Such, 134 Cal. 573, 66 Pac. 862; Wasey v. Travelers’ Ins. Co. 126 Mich. 119, 85 N. W. 459; Ætna L. Ins. Co. v. Milward, 118 Ky. 716, 82 S. W. 364; American Nat. Ins. Co. v. White, 126 Ark. 483, 191 S. W. 25; Goldschmidt v. Mut. L. Ins. Co. 102 N. Y. 486, 7 N. E. 408; State ex rel. Grice v. County Comm’rs, 54 Md. 426; Cox v. Royal Tribe, 42 Oreg. 365, 71 Pac. 73),— it certainly .was not admissible on any issue of this case. The questions here involved were those of the negligence of the respective parties. Concerning these questions the coroner’s jury had nothing to do. The coroner’s jury is summoned only when the district attorney, having notice of the death of any person within his county, has good reason to believe that murder or manslaughter has been committed. .Sec. 4865, Stats. The jury is sworn to “inquire on behalf of this state .when, in what manner and by what means the .person, whose body lies here dead came to his death.” The verdict of the coroner’s jury was that deceased came to his death by reason of an accident. It was not that either murder or manslaughter had been committed. The question of the respective negligence of the deceased and the driver of the truck was not a legitimate subject of inquiry on the part of the coroner’s jury any further than to ascertain whether the negligence of the driver of the truck was such.as to constitute manslaughter. The driver of the truck was not charged with gross negligence in this case, consequently the issues involved here were entirely foreign to the subject before the coroner’s jury, and its verdict was clearly immaterial.

Error is also assigned because of the refttsal of the circuit judge to charge the jury as requested by the defendant. We have compared the requests with the charge as given, from which it appears that the court in .its charge to the jury covered fairly and fully all of the points involved in the requests made by the appellant, from which it follows that reversible error did not result from the refusal of the judge to charge the jury as requested.. We find no error justifying a reversal of the judgment.

By the Court. — Judgment affirmed.