Enea v. Pfister

• Decision Date: 03 April 1923
• Parties: ENEA v. PFISTER.
• Court: Wisconsin Supreme Court

180 Wis. 329

192 N.W. 1018

ENEA

v.PFISTER.

Supreme Court of Wisconsin.

April 3, 1923.

Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.

Action by Mike Enea against Ludwig O. Pfister. A judgment of the civil court for defendant was reversed by the circuit court, which rendered judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought in the civil court of Milwaukee county to recover damages for personal injuries sustained by the plaintiff's daughter, five years of age, who was struck by the defendant's Ford truck, which was going north on Milwaukee street while the little girl was crossing said street on the north crosswalk of Huron street. The jury returned a special verdict finding: (1) That the defendant's automobile caused the injury in question to the plaintiff's daughter on the 16th day of August, 1921; (2) that at the time of the injury the defendant's automobile was being operated by the defendant's employé; (3) that the driver of the defendant was using the defendant's automobile in connection with the defendant's business at the time it collided with the daughter of plaintiff; (4) that the driver of the automobile failed to exercise ordinary care in the management and operation of the automobile immediately prior to the collision with the daughter of the plaintiff; (5) that such failure to exercise ordinary care was the proximate cause of the injury to plaintiff's daughter; and (6) damages, $200.

The trial judge, being of the opinion that the evidence did not support the answer of the jury to the third question, by which it was found that the driver of the automobile was using the same in connection with the defendant's business at the time of the injury, changed the answer to that question from “Yes” to “No” and rendered judgment in favor of the defendant. The plaintiff appealed to the circuit court, where the judgment of the civil court was reversed, and judgment rendered in favor of the plaintiff for $200. From that judgment defendant brings this appeal.Connell & Weidner, of Milwaukee, for appellant.

George Sfetsos and Glicksman, Gold & Corrigan, all of Milwaukee, for respondent.

OWEN, J. (after stating the facts as above).

[1] Appellant's first contention is that there was no evidence in support of the finding of the jury that the driver of the automobile was negligent in his operation and management thereof at the time of the injury. The evidence as to how the accident happened is very meager. A witness, Camille Tralonge, testified that she saw the little girl coming across the street and the truck coming from the south on Milwaukee street. She was unable to testify as to the rate of speed at which the truck was coming, but testified that it did not slow down before striking the little girl, and that it ran 25 or 30 feet before it stopped after striking her. She was struck about 5 feet from the east sidewalk and was thrown into the east gutter. The witness also testified that the driver did not blow the horn. The fact that the little girl was thrown into the east gutter indicates that she must have been struck by the right side of the machine, and that she had gotten nearly across the pathway of the truck when she was struck. The further fact that the driver did not slow down indicates that he was not keeping a lookout, which should have enabled him to have seen the little girl and, by very slight digression, avoided striking her. We think this feature of the case presented a jury question.

[2] A more important question is whether the evidence supports the finding of the jury to the effect that the driver of the truck was at the time engaged in the defendant's business. Plaintiff's evidence was sufficient to show that the truck belonged to the defendant. In fact, this was not seriously disputed. Under numerous recent decisions...