Johnson v. Sullivan's Delivery

183 Wis. 460 | Wis. | 1924

Crownhart, J.

The defendant assigns as errors herein, the failure of the court to direct a verdict in its favor; failure to enter judgment for defendant notwithstanding the verdict; refusal to change the answers in the verdict; in denying motions for a new trial; and failure to' submit certain questions to the jury. The facts as before stated clearly made this a case for the jury.# Without doubt the driver was guilty of negligence in running head-on into the Pabst truck. He must have failed to keep a proper lookout or he would not have run into the truck, and hence was negligent in this respect; the evidence is • sufficient to take the case to the jury on the question of the excessive speed of the defendant’s auto.

It is claimed that the driver, in going out of a direct route to pick up- the sofa and deliver it to his home, was without the scope' of his employment, but on this question there is not a word of proof in the evidence that he was' outside the scope of his employment. Patrick Sullivan testified that he was doing business under the name of Sullivan’s Delivery, and testified to the order for a truck to get the stove for the Wrench Company. However, he made no claim that the driver went outside the scope of his employment, nor did any other witness. This assignment of error is wholly without merit.

The claim also is made that the deceased, William Johnson, was guilty of negligence in not warning the driver of the approach of the Pabst truck. William Johnson was sitting partially on the lap of Hilmer Johnson. Hilmer Johnson testified that he himself gave no warning, but the driver testified that someone called out, “Look out.” This warning must have come from William Johnson; at least the jury were authorized to so find. The question of contributory negligence was for the jury, and they found against the defendant.

It is also claimed that the verdict as reduced by the trial court was still excessive. This court has many times said that it would not interfere with the judgment of the trial court where it had reduced the verdict of the jury except in cases where the great preponderance of the evidence was against the verdict so reduced. An examination of the evidence in this case does not indicate that the trial court abused its discretion.

By the Court. — The judgment of the circuit court is affirmed.