Czerniakowski v. Nat'l Ice & Coal Co.

• Decision Date: 17 February 1948
• Citation: 31 N.W.2d 156,252 Wis. 112
• Court: Wisconsin Supreme Court
• Parties: CZERNIAKOWSKI et al. v. NATIONAL ICE & COAL CO. et al.

252 Wis. 112

31 N.W.2d 156

CZERNIAKOWSKI et al.

v.NATIONAL ICE & COAL CO. et al.

Supreme Court of Wisconsin.

Feb. 17, 1948.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge.

Affirmed.

Two causes of action were consolidated and tried together to the judge and a jury. Robert Czerniakowski, an infant, by Stanley Czerniakowski, his guardian ad litem, plaintiff and respondent, seeks to recover damages, and Stanley Czerniakowski, father of the infant, plaintiff and respondent, seeks to recover medical expenses and loss of services of his son caused by a collision between a bicycle which Robert Czerniakowski was riding and a truck operated by Norman Neman, owned by the National Ice and Coal Company, a Wisconsin corporation, defendant and appellant, on which the American Automobile Insurance Company, a foreign corporation, was the insurance carrier, and is a defendant and appellant. The actions were commenced January 3, 1946. From a judgment entered June 27, 1947, in favor of Robert Czerniakowski in the sum of $1,000 and in favor of Stanley Czerniakowski in the sum of $409.70, defendants appel. The facts will be stated in the opinion.

FRITZ, J., dissenting.

Lane & Harrington, of Milwaukee, for appellants.

Rubin & Ruppa, of Millwaukee, for respondents.

BARLOW, Justice.

The jury found Norman Neman, driver of defendant's truck, at and just prior to the collision guilty of casual negligence with respect to the part of the road on which he was operating said truck. Appellants contend there is no credible evidence to sustain this finding of the jury.

Plaintiff Robert Czerniakowski at the time of the accident was twelve years old, was in the sixth grade in school and had average marks for that year of about 90. At the time of the collision, which occurred on October 2, 1944, at about 5 p. m., he was riding his bicycle north on South 16th Street between West Forest Home avenue and West Rogers street in the city of Milwaukee, Wisconsin. Norman Neman was driving defendant's truck in a southerly direction towards West Rogers street. At the time of the collision it was drizzling but still daylight, and the pavement was wet.

Plaintiff testified that he observed the truck when it was about one hundred feet north of the point of collision and he was about forty feet south of the point of collision, and at that time the truck was midway between the center of the street and the west curb; that plaintiff continued north between four and five feet east of the center of the street and was struck by defendant's truck at that distance east of the center of the street. Plaintiff also testified that defendant's truck driver was attempting to pass an automobile before the collision. Norman Neman, the truck driver, testified that at the time of the collision the truck was ten feet west of the center of the street; that plaintiff struck his truck at that point, just as he brought his truck to a stop.

Plaintiff's bicycle was damaged and plaintiff was thrown to the street about two feet west of the center line. There is testimony that defendant's truck traveled fifteen to twenty feet after the collision. Another witness, who was driving an automobile behind plaintiff's bicycle, testified he did not see the collision but defendant's truck came to a stop almost immediately after the collision and was about seven feet west of the center of the street at that time. This witness denied, as did the truck driver, that the truck driver was passing an automobile just prior to or at the...