224 Wis. 217 | Wis. | 1937
The plaintiff seeks to recover damages for personal injuries which he sustained, at about 3 :30 a. m., on
The jury found Sherf was negligent in failing to keep a proper lookout, and that the plaintiff was injured as a result thereof; but that the plaintiff was not negligent in failing to maintain a proper lookout. On Sherf’s motions after verdict he did not contend, and the court did not consider, that those findings were inconsistent, or that it was not within the jury’s province to find that the plaintiff was not negligent, although it found Sherf negligent in respect to lookout. The difference in those findings is reasonably attributable to the difference between the greater distance that Sherf could see with the aid of his glasses and the more limited distance that the plaintiff could see without his glasses. Moreover, even if the plaintiff’s vision had been as good as Sherf’s, it would not necessarily follow that the plaintiff was guilty of contributory negligence, as a matter of law, in failing to observe the train sooner than Sherf did, or to call his attention thereto sooner.
“The duty of a passenger in an automobile or other vehicle about to cross a railroad track is not the same as the duty of the driver of an automobile. • While the driver of the automobile is guilty of contributory negligence as a matter of law if he fails to look, a passenger in the automobile is not held to such a strict degree of care, and whether his failure to look amounts to contributory negligence is, generally, a jury question.” Tomberlin v. Chicago, St. P., M. & O. R. Co. 208 Wis. 30, 32, 238 N. W. 287, 242 N. W. 677, 243 N. W. 208; Howe v. Corey, 172 Wis. 537, 179 N. W. 791; Suschnick v. Underwriters Casualty Co. 211 Wis. 474, 248 N. W. 477; Paine v. Chicago & N. W. R. Co. 208 Wis. 423, 427, 243 N. W. 205; Kull v. Advance-Rumely Thresher Co. 209 Wis. 565, 245 N. W. 589.
Plowever, notwithstanding the jury’s finding that Sherf was guilty of causal negligence in failing to keep a proper
Sherf also contends that the relationship which existed between him and the plaintiff was rather that of employer and employee than of host and guest, and that therefore the plaintiff’s remedy was solely under the Workmen’s Compensation Act. Those contentions are based upon the facts that seventy-five per cent of the capital stock of the corporation for which they were making the trip in question, and by which the plaintiff was employed as a shop superintendent in charge of a crew of its employees, was owned by Sherf; that
By the Court. — Judgment reversed, and cause remanded with directions to enter an order granting a new trial.