Haswell v. Reuter

171 Wis. 228 | Wis. | 1920

Vinje, J.

Did the court err in dismissing plaintiff’s second cause of action based upon the alleged gross negligence of Sanders ? It is true that the trial court gave as a reason for dismissing it that no ratification of Sanders’s, conduct was shown. While it is not essential in order to render -a defendant liable that there should be a ratification on his part of gross negligence committed by his servant while in the course of his employment (Craker v. C. & N. W. R. Co. 36 Wis. 657, 668; Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922; Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304; Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424), still it is immaterial what ground the .trial court assigned as the reason for his ruling if it be in fact correct. Falkenstern v. Greenfield, 145 Wis. 232, 130 N. W. 61; Jeffers v. G. B. & W. R. Co. 148 Wis. 315, 134 N. W. 900; Garage E. M. Co. v. Danielson, 156 Wis. 90, 144 N. W. 284. So the question remains, Was there any gross negligence on the part of Sanders? The ground is nearly level-at the intersection of the two streets. Regent is paved with asphalt and is -in fine condition. South Park has a macadam pavement that is somewhat rough. The evidence shows that Sanders drove his truck, being a Ford car with a box for carrying milk, 'altogether weighing about 2,200 pounds, at a rate not exceeding from ten to fifteen miles per hour. Indeed, the preponderance of evidence is that his speed was less. The jury acquitted him of ordinary negligence as to speed,- and properly so under the evidence. The gist of the allegations of gross negligence in the complaint is excessive, wanton, and reckless speed on the part of Sanders. Since there is a lack of evidence to show ordinary negligence in this respect, it follows as a matter of course that there is a failure to show gross negligence.

The'.jury found plaintiff guilty of contributory negligence. He was driving east on Regent street and defendant was driving north on South Park street; the latter therefore had the right of way under sec.' 1636 — 49, Stats. There was no obstruction preventing either driver from seeing the other for a distance of at least 150 feet back from the crossing and continuously from there to the crossing. Plaintiff. testified that he drove at a rate of about twenty miles an hour and that he presumed he speeded up some to get across. He drove a Buick' sedan weighing with its passengers about 4,650 pounds. There is other evidence to sustain the finding that plaintiff drove at a great rate of speed considering the fact that he was about to intersect South' Park street and that defendant was coming north on it and had the right of way. In view of the. answers of the jury to questions 3 and 7 (a) it is clear that the negligence of plaintiff consisted in an excess of speed, while that of the defendant, as shown by the answers to questions 1 and 7 (f), did not consist in excessive speed, but in the manner in which he handled his truck at or just before the collision. At any rate it is clear that the jury negatived negligent speed on his part, and the only other evidence that would sustain a finding of negligence is the manner in which, he operated his truck when the collision was imminent. Since undisputed competent evidence shows plaintiff guilty of contributory negligence, a number of assigned errors become immaterial. We shall note only a few. That the collision occurred as the result of excessive speed on the part qí plaintiff cannot well be doubted. He drove his car over the crossing just in front of the defendant, at a high rate of speed, when he should have yielded the right of way, and was struck by the truck before he cleared. In view of such undisputed fact, the court properly changed the answer to question 7 (b) from “No” to “Yes.” It followed as a matter of law from the previous findings of the jury that plaintiff’s negligent rate of speed was the proximate cause of the collision. But for such speed the collision would not have occurred. When the causal connection is clear it may be found by the court; when not clear it is a question for the jury. Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988.

The jury viewed the premises, and the court instructed them that the answer tq each question of the special verdict “must be based wholly upon the view of the premises and the evidence which had been received during the trial.” This was error. The finding must be based upon the evidence in the case and not upon facts disclosed by the view not in evidence. The view is taken for the purpose of enabling the jury to understand the evidence introduced and not for the purpose of furnishing original evidence upon which to base a verdict. Washburn v. M. & L. W. R. Co. 59 Wis. 364, 18 N. W. 328; Munkwits v. C., M. & St. P. R. Co. 64 Wis. 403, 25 N. W. 438; Seefeld v. C., M. & St. P. R. Co. 67 Wis. 96, 29 N. W. 904; Hughes v. C., St. P., M. & O. R. Co. 126 Wis. 525, 106 N. W. 526. But the error was nonprejudicial. What the jury saw was the intersection of two nearly level paved streets. No defects in the streets or delicts of either party were visible. Nothing was seen upon which the jury could base a finding of contributory negligence. That finding must have rested exclusively upon the evidence given upon the trial. The fact that the jury saw such- a place of collision could not enable them to determine who was at fault. Therefore the erroneous instruction was harmless.

It is urged that the answers to questions 3 and 7 (c) are inconsistent. Question 3 is general, and, as before stated, the negligent speed of plaintiff required an affirmative answer. The court held so in answering question 7 (a) as to speed. Question 7 (c) relates to a negligent act arising from the manner in which the car was driven other than that of speed, and none was found — perfectly consistent with a finding of negligent speed.

Since the facts showed contributory negligence of plaintiff as to his cause of action and of defendant as to his cause of action, the court properly dismissed both complaint and counterclaim upon the merits.

By the Court. — Judgment affirmed.