Ertel v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 14 November 1916
• Court: Wisconsin Supreme Court
• Parties: ERTEL v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

164 Wis. 380

160 N.W. 263

ERTEL

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

Supreme Court of Wisconsin.

Nov. 14, 1916.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Andrew Ertel against the Milwaukee Electric Railway & Light Company and another. From judgment for plaintiff, defendant Milwaukee Western Fuel Company appeals. Affirmed.

It appears from the complaint that on December 5, 1914, at 6 o'clock p. m. plaintiff was waiting at the northeast corner of the intersection of Third and Poplar streets in the city of Milwaukee, intending to board one of the cars of the defendant Milwaukee Electric Railway & Light Company (hereinafter called the Electric Company), which was then approaching the street intersection, running in a northerly direction on the east side of Third street; that at the same time an employé of the defendant Milwaukee Western Fuel Company (hereinafter called the Fuel Company) was driving a team of horses attached to a large coal wagon easterly on Poplar street, intending to cross the street railway company's tracks; that while the team of the Fuel Company was crossing the tracks it was hit with great force and violence by the approaching street car, causing the wagon to be thrown against plaintiff, seriously injuring him, he suffering a fracture to his skull and injury to his sight. The Electric Company answered, denying any negligence on its part, and alleging that the collision was due solely to the negligence of the driver of the coal wagon. The Fuel Company answered, denying negligence on its part, and alleging that the injury was caused solely by the negligence of the Electric Company's employés.

It further appears that John Muth, who was the driver of the wagon owned by the Fuel Company, brought an action against the Electric Company and recovered judgment, and upon the trial of the action against the Electric Company the jury found that Muth, the driver of the coal wagon, was not guilty of any want of ordinary care on his part which contributed to the injuries that he (Muth) suffered. The Fuel Company moved to have the driver Muth made a party defendant, pursuant to the provisions of sections 2610, 2611, and 2656a, Stats. This motion was denied, and the Fuel Company excepted. A trial was had, and the jury found that the car of the Electric Company was not operated with ordinary care, in that it was run at a high rate of speed; that the motorman failed to ring the gong, failed to keep a proper lookout, and did not exercise ordinary care after it became apparent that Muth would drive upon the track; that Muth did not look in the direction from which the car was approaching at the last opportunity before going upon the track; that Muth should have appreciated in the exercise of ordinary care that a collision would result unless the speed of the car was materially reduced, and that the negligence of Muth and the negligence of the motorman proximately caused plaintiff's injury. Upon the verdict judgment was rendered for the plaintiff. Both defendants appealed. However, on motion of its codefendant the appeal of the Electric Company was dismissed, so that the case is now before us upon the appeal of the Fuel Company.Doe, Ballhorn & Doe, of Milwaukee, for appellant.

Lehr & Kiefer, of Milwaukee (Julius E. Kiefer, of Milwaukee, of counsel), for respondent Ertel.

Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for defendant Milwaukee Electric Ry. & Light Co.

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

It is alleged that the trial court erred in the following particulars: (1) In denying the Fuel Company's motion to make Muth, the driver of the coal wagon, a party defendant in the action; (2) in denying appellant's motion to amend its answer so as to allege that the question of the negligence of the driver of appellant's coal wagon was res adjudicata; (3) in refusing to allow the appellant Fuel Company to show by the witness Muth that when he approached the tracks there was in his judgment plenty of time for him to cross in safety; (4) in refusing to allow the defendant Fuel Company to offer in evidence the verdict of the jury, order for judgment, and judgment in the case of Muth v. Milwaukee Electric Railway & Light Company; (5) in permitting counsel for the Electric Company to comment upon the fact that the insurance company was interested in the defense; (6) in denying the motion of the Fuel Company after verdict that the judgment contain a clause directing the execution to be first satisfied out of the property of the Electric Company.

[1] Section 2610, Stats., is as follows:

“The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject-matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in; and when in an action for the recovery of real or personal property a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract or for specific real or personal property or for the conversion thereof may, at any time before answer, upon affidavit that a person, not a party to the action and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place and discharge him from liability to either party, on his depositing in court the amount of the debt or delivering the...