Bodden v. John H. Detter Coffee Co.

• Decision Date: 04 June 1935
• Citation: 261 N.W. 209,218 Wis. 451
• Parties: BODDEN v. JOHN H. DETTER COFFEE CO. ET AL.
• Court: Wisconsin Supreme Court

218 Wis. 451

261 N.W. 209

BODDEN

v.JOHN H. DETTER COFFEE CO. ET AL.

Supreme Court of Wisconsin.

June 4, 1935.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge.

Reversed.

Action by Leo F. Bodden against John H. Detter Coffee Company and another, commenced September 9, 1932. From a judgment for the plaintiff entered August 21, 1934, the defendants appeal.

The plaintiff sues to recover for injuries sustained in an automobile collision which he alleges were caused by the negligence of the defendant. The collision occurred at a busy intersection in the city of Milwaukee. A truck of the defendant coffee company was traveling east and the plaintiff was driving south in his automobile. These vehicles will be hereinafter referred to as the truck and the car. Neither street was an arterial. The coffee company's servant was driving the truck on his master's business. The jury found that the driver of the truck was negligent as to speed, lookout, right of way, and control, and that each such negligence was a cause of the collision. They found the plaintiff negligent as to lookout, but that his negligence was not a cause of the collision and found him not negligent in any other respect. A question was submitted directing the jury that in case they found that both parties “by negligent operation of their respective automobiles contributed to produce” the collision, they determine “what proportion of all the negligence producing the collision was attributable” to each party. In answer to this question, the jury found 10 per cent. as to the plaintiff and 90 per cent. as to the driver of the truck. Upon the verdict, judgment was entered for the plaintiff for the entire amount of the damages assessed by the jury. From this judgment, the defendants appeal. Such additional facts as are necessary to an understanding of the decision are stated in the opinion.

Lamfrom, Tighe, Engelhard & Peck, of Milwaukee, for appellants.

Charles H. Gorman, of Milwaukee, for respondent.

FOWLER, Justice.

The defendants contend (1) that as matter of law the plaintiff's negligence as to lookout was a cause of the collision; (2) that the jury's findings of no causal connection between plaintiff's negligence and the collision and of the comparative contributory negligence of the two drivers to produce the collision are inconsistent and vitiate the verdict; and (3) that the jury's finding of contributory negligence should be disregarded because the jury were not required to answer the question of comparativenegligence in view of their finding of want of causal connection between plaintiff's negligence and the collision, and that without a finding of comparative negligence the verdict would be insufficient to support a judgment even though the verdict be corrected to find that plaintiff's negligence was a cause of the collision.

[1][2] (1) The plaintiff testified that as he entered the intersection he looked to his right and saw nothing but a west moving street car 100 feet away; that he then looked to his left and seeing no interfering traffic proceeded to the center of the street, when he again looked to his right but saw nothing; and that he then proceeded onto the truck's traffic lane and the collision occurred. The trial court speculated that the jury may have considered from this that the plaintiff should have again looked to his right after making his last observation and that his only negligence was in not so doing, but that the defendant was coming at such great speed that had he looked again he could not have prevented the collision by the exercise of ordinary care. If this view is permissible, the finding of no causal connection between the plaintiff's negligence as to lookout and the collision should be sustained.

We are of opinion, however, that the trial court was not justified in attributing to the jury the inference that the only negligence of the plaintiff occurred when it was too late to prevent a collision. The plaintiff testified that he did not see the defendant's car at all; that as he first entered the intersection he “looked to the west and saw a street car about 100 feet away,” saw nothing else, and kept on; that he then looked east and nothing was coming from that direction; that he then looked...