Daanen v. MacDonald

• Decision Date: 12 April 1949
• Parties: DAANEN v. MacDONALD et al.
• Court: Wisconsin Supreme Court

254 Wis. 440

37 N.W.2d 39

DAANEN

v.MacDONALD et al.

Supreme Court of Wisconsin.

April 12, 1949.

Appeal from an order of the Circuit Court for Brown County; Edward M. Duquaine, Circuit Judge.

Affirmed.

Action commenced January 21, 1948, by Norbert G. Daanen, plaintiff, against W. Heraly MacDonald, Wisconsin Public Service Corporation, Leland L. Knoke, Knoke Lumber Company, a corporation, and Employers Mutual Liability Insurance Company of Wisconsin, a corporation, defendants, to recover for injuries received in an automobile collision. After verdict and before judgment the plaintiff and the defendant Knoke, Knoke Lumber Company and Employers Mutual Liability Insurance Company filed written motions to change some of the answers in the special verdict. This appeal is by the moving defendants from a portion of the order of the trial court disposing of the motions.

The accident out of which this action arose occurred at about 4 p. m. on March 8, 1946, in an underpass upon an east and west stretch of highway 41 about two miles south of DePere, Wisconsin. The highway consisted of a twenty-foot concrete slab with shoulders, the one on the north being ten and a half feet wide and level. On the day of the accident there had been sleet and snow in the forenoon and in the afternoon there was snow with strong winds that caused drifts to form upon portions of the highway. In places the highway was icy. Visibility in the underpass was particularly bad.

On the day of the accident the defendant MacDonald, a resident of Oshkosh, Wisconsin, had been called to Green Bay by his employer to attend a meeting. Shortly prior to the accident he had left Green Bay to return to his home. He drove through the underpass from an easterly direction, but decided, because of the road and weather conditions, to return to Green Bay. He turned his car around and entered the underpass from the west and his car became stalled in a snow drift on the shoulder on the north side of the highway. Some time after MacDonald's car was stalled plaintiff and another garage employee, Janssen, driving a wrecker, entered the underpass from the same direction. MacDonald asked them to pull him out of the snow drift. The wrecker was turned around and backed up to the MacDonald car, and they attempted to pull it out of the snow drift. However, the engine in the wrecker stopped because of snow on the ignition wires and could not be started again. After a conference it was decided that plaintiff and Janssen would attempt to push MacDonald's car out of the snow drift. If they succeeded, MacDonald was then to attempt to push the wrecker until the motor would start. MacDonald's headlights were on. The wrecker had two red lights on the rear, two red lights on the rear of its cab, and two on the front of its cab, in addition to the headlights. These lights were on at the time of the accident. MacDonald got in his car and started the motor, and plaintiff and Janssen were attempting to push his car to the west. Plaintiff was on the side toward the highway and Janssen was to his right or toward the north. Their backs were to the east. While they were in that position the defendant Knoke entered the underpass from the east, driving a car with headlights on. He failed to see the MacDonald car and plaintiff until he was ten or fifteen feet from them. He struck plaintiff and the MacDonald car, and the plaintiff was severely injured.

The case was tried to the court and a jury, and the jury in its special verdict found the defendant Knoke causally negligent with respect to speed and lookout. The defendant MacDonald was found to be free from negligence and the plaintiff was found to be free from contributory negligence. After the return of the verdict the plaintiff moved for a new trial on the grounds, among others, that the finding of no negligence on the part of the defendant MacDonald was contrary to the uncontradicted evidence, and because the amount of damages awarded to the plaintiff was inadequate. The defendant Knoke also made the usual motions after verdict. The court increased the damages and ordered judgment on the verdict as so amended in favor of the plaintiff and against the defendant Knoke, his employer and his insurer, unless the plaintiff should, within thirty days from the date of the order, file a notice that he elected to have a new trial against those defendants, and dismissing the complaint against the defendants MacDonald and Wisconsin Public Service Corporation.

The defendants Knoke, Knoke Lumber Company and Employers Mutual Liability Isnurance Company of Wisconsin appealed from that part of the order increasing the damages and ordering judgment against them with option to the plaintiff for a new trial against said defendants. Following that appeal the plaintiff served and filed a motion to review certain rulings of the trial court in the order which he claims to be erroneous. The plaintiff also moved that the appeal be dismissed for the reason that appellants failed to serve their notice of appeal upon the defendants MacDonald and his employer. Other material facts will be stated in the opinion.

Norman H. Smith, of Green Bay (Lee H. Cranston, of Green Bay, of counsel), for defendant MacDonald.

Bradford, Derber & Gabert, of Appleton, for appellant Leland L. Knoke.

Everson, Ryan, Whitney & O'Melia, of Green Bay, for respondent.

BROADFOOT, Justice.

The motion to dismiss the appeal must be denied. Sec. 274.11, Stats. provides that the notice of appeal must be served on the ‘adverse party.’ The term ‘adverse party’ has been defined by this court in many cases. In Harrigan v. Gilchrist, 121 Wis. 127, 208, 99 N.W. 909, 927, the court states that the supreme test as to satisfaction of the appeal statute with respect to service on an adverse party ‘is the possession of some substantial interest adverse to the judgment, a revision of which is sought in the appellate court.’ In Re Estate of Pitcher, 240 Wis. 356, 360, 2 N.W.2d 729, 731, the court used the following language:

‘In relation to the...