206 Wis. 45 | Wis. | 1931
The defendant lays as grounds for reversal of the judgment that as matter of law (1) the defendant was not negligent; (2) the plaintiff was guilty of contributory negligence; (3) the damages are excessive; (4) the court erred in limiting cross-examination of the plaintiff respecting certain allegations of the complaint; .(5) the plaint
(1) Upon the bare facts above stated it is manifest that the jury were justified in finding the defendánt negligent. He saw the plaintiff during his whole flagging operation. He turned in behind the plaintiff instead of keeping well to his right as he might have done without inconvenience to himself or interference with other users of the highway. He had just started up his car, and was going so slowly that he could have stopped it instantly. Notwithstanding this he struck the plaintiff. This so plainly spells negligence that further discussion of the point is needless.
(2) That the plaintiff was not negligent seems equally plain. He was required by sec. 193.30, Stats., to flag his car. He performed the flagging operation in the manner that it is regularly performed. He had equal right to the highway with other users of it. He might properly assume that drivers of the waiting automobiles would observe a proper lookout and would see him and would not wilfully or carelessly run him down in their oncoming'. To uphold defendant’s contention it would have to be held as matter of law that plaintiff was required to go backwards or sideways or keep turning around while passing to the point at which he would board his car. It is true, as defendant contends, that a workman on the street must pay some attention to traffic. “He cannot let his thoughts go wool-gathering.” Dinan v. Chicago & M. E. R. Co. 164 Wis. 295, 159 N. W. 944. The plaintiff could not in utter heedlessness step in front of an oncoming car, as defendant’s counsel seem to think he did. But it is sufficient to say in answer to this that the jury found that he did not so step, upon evidence amply sufficient to support their finding. The plaintiff, after completing performance of his statutory duty, possessed at least equal rights with other persons on the street about to board street cars. Their rights under somewhat similar circumstances are considered in Nelson v. Pauli, 176 Wis. 1, 6, 7, 186 N. W. 217.
(4) The complaint under this head is that after the plaintiff had testified that he had not been paid compensation under the workmen’s compensation act and made no claim for such compensation, he was asked on cross-examination if he had served a notice or demand on his employer to sue the defendant. This was objected to and the objection sustained. Plaintiff was then asked if he had not alleged in his complaint that he had given such notice. Objection to this was
(5) The.facts urged upon this point are (1) that upon voir dire examination of the jurors they were asked whether they were interested in or insured by the Fidelity and Casualty Insurance Company; and (2) that plaintiff’s counsel on cross-examination elicited from one of defendant’s physicians that about one-fourth of his business was done in compensation cases for industrial insurance companies. The defendant’s point is as to (1), and it is obviously well taken, that these inquiries were made for the purpose of enhancing the damages by insinuating to the jury that the defendant carried an indemnity policy on his car and that not he but his insurance company .would have to pay the judgment. Such tactics should not be adopted by trial lawyers, and that lawyers persist in using them is to be regretted. Complaint is made, of .such practice in nearly every automobile collision case, that comes before us and we note that the complaining lawyers are not infrequently complained against. It is true that this court has held it proper to inquire as was here done of jurors on the voir dire when such inquiry is made “in good faith.” Lozon v. Leamon Bakery Co. 186 Wis. 84,
Plaintiff’s counsel urge that the appeal is utterly without merit and request that double costs be imposed. While assignments (1), (2), and (4) might perhaps be so considered, (3) and (5) cannot be.
By the Court. — The judgment of the superior' court is affirmed.