Kuklinski v. Dibelius

• Decision Date: 05 October 1954
• Citation: 66 N.W.2d 169,267 Wis. 378
• Parties: Karen KUKLINSKI, by Bert J. Kuklinski, her guardian ad litem, et al., Appellants, v. George W. DIBELIUS, Jr., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 169

66 N.W.2d 169

267 Wis. 378

Karen KUKLINSKI, by Bert J. Kuklinski, her guardian ad litem, et al., Appellants, v. George W. DIBELIUS, Jr., et al., Respondents.

Supreme Court of Wisconsin.

Oct. 5, 1954.

Rehearing Denied Dec. 7, 1954.

N. Paley Phillips, Milwaukee, for appellants.

Wallace A. Barr, Milwaukee, for respondents.

BROADFOOT, Justice.

Upon this appeal the plaintiffs contend that the defendant driver was guilty of causal negligence as a matter of law in all three respects. There was a conflict in the testimony. Dibelius testified that he was proceeding west on Mitchell street in the city of Milwaukee a short time prior to the accident. A bus was preceding him. He followed the bus west from sixth to seventh street where both vehicles stopped. After the bus proceeded across the intersection, he had started to pass the same and when the front end of his car was about even with the front end of the bus, the plaintiff Karen Kuklinski darted out from in front of the bus and into the path of his car. She was crossing the street in the center of the block going from the north side of Mitchell street toward the south. He did not blow his horn but as soon as possible he applied his brakes, leaving skid marks upon the pavement from 15 to 16 feet in length. He testified that he was traveling approximately 15 miles per hour, and that he could not see the child who was approaching from his right because his view was obstructed by the bus. The front bumper of his car struck the child and threw her across the center of the street and into a lane for east-bound traffic. Karen, at the time of the accident, was approximately four years and eight months of age.

His testimony was corroborated by that of one John B. Liberski, an eyewitness to the accident. This testimony was contradicted in many respects by one Helmuth Sodemann, the bus driver. However, the jury had a right to believe the defendant driver's testimony and, if believed, it warrants the answers made to the special verdict. The jury could have believed the testimony of Sodemann and had it done so and found Dibelius causally negligent in one or more respects, a verdict in favor of the plaintiffs could be sustained.

Under this conflict in the testimony we cannot upset the jury verdict unless there was some error in the trial. The plaintiffs contend that the court erred in its instructions to the jury and that the jury was influenced and prejudiced thereby. The first instruction complained of is as follows:

'You will consider from the evidence whether the minor plaintiff suddenly ran into the street, and if you are satisfied from the evidence that the child unexpectedly and suddenly ran in front of the defendant's automobile at the time when the defendant, George M. Dibelius, Jr., was driving his automobile in an ordinarily careful manner, in the exercise of ordinary care, under such conditions that he had no reason to anticipate or foresee any such action on the child's part, and when the automobile was only such distance away that it could not, in the...