Bielke v. Knaack

• Decision Date: 05 April 1932
• Citation: 242 N.W. 176,207 Wis. 490
• Parties: BIELKE v. KNAACK ET AL.
• Court: Wisconsin Supreme Court

207 Wis. 490

242 N.W. 176

BIELKE

v.KNAACK ET AL.

Supreme Court of Wisconsin.

April 5, 1932.

Appeal from the Circuit Court for Jefferson County; George Grimm, Circuit Judge.

Action by John Bielke, by Norman Bielke, his guardian ad litem, against Adolph Knaack and another. From a judgment for plaintiff, defendants separately appeal.--[By Editorial Staff.]

Affirmed.

This action was commenced by the plaintiff by his guardian ad litem to recover damages for injuries sustained as a result of a collision between a Chevrolet coach in which he was riding and which was being driven by his brother, the defendant Elroy Bielke, and a Chevrolet truck belonging to the defendant Knaack which had run out of gasoline and was stalled on the highway.

The jury found that defendant Knaack was negligent in leaving his truck standing on the highway, and in not carrying clearance signal lights or reflective signals on his truck. The jury found that the defendant Bielke was negligent in not slowing down the speed of his car sufficiently when his vision was interfered with by the lights of an approaching car. The jury also found that the negligence of the defendants constituted proximate causes of the plaintiff's injuries, and that both defendants should have reasonably anticipated that injury to another might probably result from such negligence. The jury assessed the plaintiff's damages at the sum of $2,800. Judgment on the verdict for the damages found and costs, aggregating the sum of $2,937.73, was duly entered on the 18th day of June, 1931. From which judgment both defendants separately appealed.Mistele & Smith, of Jefferson, William H. Woodard, of Watertown, and Sanborn, Blake & Aberg and Ernest H. Pett, all of Madison, for appellants.

Grady & Dakin, of Watertown, for respondent.

NELSON, J.

The facts are not in serious dispute. The plaintiff, a boy about nine years of age at the time of the accident, was riding in a Chevrolet coach which was being driven in an easterly direction along highway No. 30 by defendant Bielke. Highway No. 30, at the time of the accident, was a gravel road surfaced with asphalt with a driving surface about eighteen feet wide with three-foot gravel shoulders. Defendant Elroy Bielke, at the time of the accident, was a little past twenty-one years of age. Both the plaintiff and his brother were en route to the farm of another brother where they planned to do the evening chores. Some little time prior to the accident defendant Knaack was driving his Chevrolet truck along the same highway in the same direction. His truck ran out of gasoline and stalled on the right side of the traveled portion of the highway. The position of the truck after it stalled was on the right side of the road so that a clearance of about thirteen feet of the traveled portion remained. The box or rack of the truck was eighty-four inches in width. While the truck was equipped with suitable headlights and a tail-light it did not carry clearance signal lights or reflective signals. When the truck stalled the defendant Knaack attempted to shove it forward on to the shoulder, but was unable to do so. He got out of his truck and examined his tail-light to see if it was burning, and then proceeded to a nearby farm to procure some gasoline. Just as he was returning to the truck in another car, and when within a distance of fifty or sixty feet from the stalled truck, the Bielke car crashed into the rear of the stalled truck. As a result of the collision the plaintiff was seriously injured.

[1] It is insisted by defendant Knaack that the court erred in refusing to grant his motion for judgment in his favor because the verdict as to him was contrary to the evidence. While the finding of the jury that he was negligent in leaving his truck standing on the highway, under all of the circumstances, may be at least open to serious question, the jury found that he was also negligent in not carrying upon his truck clearance signal lights or reflective signals, and that such failure was a proximate cause of plaintiff's injuries.

Section 85.06 (3) Stats. is as follows: “(3) Clearance signals. Every motor vehicle having a width at any part in excess of eighty inches shall carry two clearance signal lights on the left side of such vehicle, one located at the front and the other located at the rear of the vehicle, such lights to be of such color and design as is approved by the industrial commission. Reflective signals approved by the industrial commission may be used in lieu of clearance signal lights, but the center of such signals shall be not more than forty-eight inches above the road.” Since this statute clearly required the plaintiff's truck to carry clearance signal lights or reflective signals, and since the collision was one between the front end of the Bielke car and the rear end of the truck, we think that the verdict of the jury, finding defendant Knaack negligent in failing to carry such clearance signal lights or reflective signals and finding such negligence to be a proximate cause of plaintiff's injuries, may not be disturbed.

Defendant Bielke concedes that there is ample evidence to sustain the verdict of the jury finding him negligent, but earnestly contends (1) that judgment should have been ordered in his favor for the reason that the action was improperly maintained against him because he is a brother of the plaintiff and both resided in the same home; (2) that a new trial should have been ordered, because (a) the damages found by the jury are excessive, (b) certain hospital records were erroneously admitted to his prejudice, and (c) the court erred in instructing the jury on the question of damages. Defendant Knaack also insists that the damages are excessive, and that he too was prejudiced for the reasons stated in (b) and (c).

[2] 1. We see no merit in defendant Beilke's contention that this action is not maintainable against him because of...