Devine v. Bischel

• Decision Date: 01 May 1934
• Citation: 254 N.W. 521,215 Wis. 331
• Parties: DEVINE v. BISCHEL ET AL.
• Court: Wisconsin Supreme Court

215 Wis. 331

254 N.W. 521

DEVINE

v.BISCHEL ET AL.

Supreme Court of Wisconsin.

May 1, 1934.

Appeal from a judgment of the Circuit Court for Sheboygan County; Edgar V. Werner, Circuit Judge. Reversed.

Action commenced by Lawrence Devine against the defendants Harry Bischel and his employer, Wisconsin Gas & Electric Company, to recover damages for personal injuries sustained by plaintiff as the result of a collision with an automobile operated by Bischel. Upon a trial the jury returned a verdict upon which judgment was ordered for plaintiff, and defendants appealed.

Sanders & McCormick, of Milwaukee, for appellants.

Puhr & Van de Water, of Sheboygan, for respondent.

FRITZ, Justice.

[1][2] Shortly after 6 p. m. on December 30, 1931, plaintiff was injured as the result of a collision between his Ford automobile and an automobile operated by the defendant Bischel. The collision occurred on a straight, graveled highway, the traveled portion of which was 16 feet wide, bordered by shoulders 5 feet wide. Plaintiff relied on proof that, as he was driving westward up a hill 1,500 feet long, his automobile became stalled when it was 1,000 feet from the top of the hill, and one foot from the north shoulder of the road; that he believed his gasoline supply was too low, and therefore stepped out on the left side of his automobile and measured the amount in the tank, which was under the driver's seat; and that, before he could resume his seat, Bischel's automobile came from over the crest of the hill at the rate of 50 to 60 miles per hour, and collided with plaintiff's automobile in such a manner as to knock him down. On the other hand, the defendants reliedon proof which, although disputed, would have warranted the jury in finding that shortly before the collision plaintiff was so intoxicated that he had had difficulty in walking and in starting his automobile; that at the time of the collision plaintiff's gasoline supply was not so low as to cause his automobile to become stalled; that he was then driving at the rate of 10 miles per hour, but 2 to 3 1/2 feet south of the center of the traveled portion of the highway; and that he failed to yield half thereof for Bischel to pass.

Because of the conflicts in the evidence, there were issues of fact for the jury in several respects. The court prepared questions for a special verdict, but they were merely general questions as to whether Bischel, on the one hand, and plaintiff, on the other hand, were guilty of negligence which was a proximate cause of plaintiff's injury; whether the negligence attributable to plaintiff was greater than that of Bischel, and, if so, what amount of the damages sustained by plaintiff was attributable to his negligence. Immediately upon the proposed submittal of those questions in such omnibus form, defendants' counsel objected thereto because the questions, as prepared by the court, did not permit the jury to pass upon the specific issues of negligence which arose under the evidence. Defendants' counsel then duly requested the submittal of the following question: “At the time of the collision was Lawrence Devine under the influence of intoxicating liquor to such an extent that it materially interfered with his ability to operate his automobile?” and also questions as to whether the plaintiff's automobile was in motion or had stopped at the time of the collision; whether defendants' automobile was then on the right or on the left hand side of the highway; and a similar question as to plaintiff's automobile. All of those requests were denied, but the court attempted to cover the issues to which they related by appropriate instructions.

The jury, in answer to the court's omnibus questions, found that Bischel, as well as plaintiff, was guilty of negligence which was a proximate cause of plaintiff's injury; and that Bischel's negligence was greater than plaintiff's negligence. However, in view of the omnibus form of the questions, it is impossible to determine whether the necessary number of jurors had agreed that Bischel was wrongfully driving on his left side of the road, and therefore negligent, or whether they had agreed that he was negligent in respect to speed, or to control, or some other matter, or whether the necessary number of jurors had, in fact, not united in finding that Bischel was negligent either in driving on his left side of the road, or in respect to speed, or to control. Manifestly, although the jurors may not have united in agreeing that Bischel was negligent in respect to driving on the wrong side of the road, because, for instance, four of them believed otherwise, the latter, if they believed Bischel negligent in some other respect, not concurred in by the other jurors, could nevertheless have honestly united with the others in finding Bischel negligent under the omnibus question. Thus, although a sufficient number of jurors may not have agreed as to any particular set of ultimate facts, which would have constituted negligence on the part of Bischel, nevertheless, because of the submittal of the question in the omnibus form, there would erroneously appear to have been an agreement. Consequently that form of question deprived defendants of the right to have specific findings of the jury in respect to every set of facts upon which negligence on the part of either Bischel or the plaintiff was charged. As this court has said: “It is the function of a special verdict to secure a finding by the jury on each question litigated. In negligence cases each ground of negligence constitutes a distinct litigated question, and proper practice requires that the jury be given an opportunity to find specially with reference to each particular ground of alleged negligence. This cannot be accomplished by the submission of an omnibus question in which the jury is required to find generally upon the question of negligence.” Matuschka v. Murphy, 173 Wis. 484, 487, 180 N. W. 821, 822;Gherke v. Cochran, 198 Wis. 34, 222 N. W. 304, 223 N. W. 425;Rowley v. C., M. & St. P. R. Co., 135...