Geffert v. Kayser

• Decision Date: 06 February 1923
• Citation: 179 Wis. 571,192 N.W. 26
• Parties: GEFFERT v. KAYSER ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

179 Wis. 571

192 N.W. 26

GEFFERT

v.KAYSER ET AL. (TWO CASES).

Supreme Court of Wisconsin.

Feb. 6, 1923.

Appeal from Superior Court, Dane County; August C. Hoppmann, Judge.

Separate actions by Clara Geffert and Louis A. Geffert against Adolph H. Kayser and another, which were consolidated. From a judgment of nonsuit, both plaintiffs appeal. Affirmed in part, and reversed in part.

Personal injury. Two actions were begun, one by Clara Geffert, the wife, and one by Louis A. Geffert, the husband, against the defendants. Upon the opening of the trial, there was a motion to consolidate the two causes, which was granted, and they were tried as one case, and will so be treated here.

The case was tried to the court and jury, and at the close of plaintiffs' evidence there was a motion on behalf of the defendant Adolph H. Kayser that the plaintiffs be nonsuited on the ground: First, that the testimony failed to show any negligence on the part of Paul Kayser; second, that the testimony affirmatively disclosed contributory negligence on the part of the plaintiff Clara Geffert; and, third, that the testimony failed to show any relationship of agency or otherwise between the defendant Adolph H. Kayser and his son, Paul Kayser, which would make Adolph H. Kayser liable for the acts of Paul Kayser. The defendant Paul Kayser moved for a nonsuit on the first two grounds above mentioned. The trial court granted the motion of each defendant, judgment of nonsuit was entered, and from that judgment the plaintiffs appeal. The facts will be stated in the opinion.

Vinje, C. J., and Eschweiler and Jones, JJ., dissenting.J. T. Dithmar and R. P. Clark, both of Elroy, for appellants.

Buell & Lucas and Olin, Butler, Thomas, Stebbins & Stroud, all of Madison, for respondents.

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

[1] We will first consider the liability of the defendant Adolph H. Kayser. It appears without dispute that the automobile, which was at the time of the accident being driven by Paul Kayser, was owned by Adolph H. Kayser. It further clearly appears that Paul Kayser had procured his father's permission to take the car for the purpose of taking a young lady to a dance, and that he was on his way from his father's home to the residence where he was to call for her at the time the accident occurred. It is claimed that going to the dance was part of the education of Paul Kayser, who at the time was a student; that he was therefore engaged in the business of his father; and other similiar contentions are urged. Every contention made here by the plaintiffs as to the liability of the defendant Adolph H. Kayser was fully considered in Crossett v. Goelzer (Wis.) 188 N. W. 627, and was there ruled adversely to plaintiffs. The judgment of nonsuit as to Adolph H. Kayser is correct, and we shall not further consider the matter of his liability.

This leaves for consideration two questions: First, was there an entire want of evidence of negligence tending to show that the defendant Paul Kayser was negligent? Second, was there evidence which conclusively established that the plaintiff's negligence contributed to produce the injury complained of?

[2] In this connection it is elementary that, upon a motion for a nonsuit, plaintiffs' evidencemust be given the most favorable construction which it will bear in their favor, and if there is credible evidence from which a reasonable inference can be drawn in support of the plaintiffs' case, the question must be left to a jury. Mahar v. Montello Granite Co., 146 Wis. 46, 130 N. W. 949. Not only must the facts be undisputed, but, if conflicting inferences can be drawn therefrom, it is within the province of the jury to draw the inferences, if the question is not one of law. For brevity and convenience, the word “defendant” in this opinion will hereafter be used as referring to Paul Kayser.

IMAGE

The evidence will be more clearly understood by reference to the accompanying diagram, which is a reproduction on a smaller scale of Exhibit No. 1. Gorham street runs northeast and southwest. Blair street runs northwest and southeast. The accident occurred between the curb lines of Gorham street, where the sidewalk on the northeasterly side of Blair street crosses Gorham street. Both streets are 66 feet wide. Both Blair and East Gorham streets are 32 feet wide between the curbs; on each side of each street, between the curb and lot line, there is a terrace and sidewalk, taking up 17 feet. East Gorham street is a smooth, hard-surface street, upon which there is much automobile traffic. The crosswalk is of brick and about 4 feet wide, covered with a tar surfacing, having the same general appearance as the roadway. On each end of the crosswalk is an iron plate or apron, about 5 feet 4 inches long and 2 feet wide, which bridges the gutter.

On the 23d day of July, 1920, plaintiffs resided on the northeasterly side of Blair street, at No. 319, about 46 feet distant in a southeasterly direction from the southeasterly side of Gorham street. The defendant resided at the intersection of East Gorham street and North Livingston street, two blocks distant, in a northeasterly direction. On the evening of July 23, 1920, there was being held on Lake Mendota a water carnival, known as a “Venetian Night.” Between 8:30 and 9 o'clock, the plaintiff Clara Geffert, accompanied by Mrs. Alma Heim, who was wheeling a baby in a gocart, Mr. Louis Kurth, his wife, Lottie Kurth, and their child, about 10 years of age, left the Geffert home, traveling on the northeasterly side of Blair street to go northwesterly along the northeast side of Blair street to Lake Mendota. This would require them to cross Gorham street on the northeasterly side of Blair street. The party walked in the following order: Mr. Kurth led with his child by the hand, following him came Mrs. Geffert, then came the gocart with the baby, and behind the gocart followed Mrs. Heim and Mrs. Kurth. Up to this point there is no conflict.

Mrs. Geffert testified that she looked east and west to see if the crossing was perfectly clear before starting, meaning that she looked up and down East Gorham street to the right and to the left.

“We started across; it was perfectly clear. I took a good observation of the crossing, and I am given to the habit of observing crossings. And, as I went across, I observed the crossing of the street, to see if anything was coming. I first saw the car about halfway up the block; up by Mr. Meltzer's house, would be as near as I can state. When I saw the car near Mr. Meltzer's house, I was just this side of half of the street towards my home. I was about a foot this side towards my home. I was about a foot east of the center. In front of Mr. Meltzer's house I saw a car. It was coming at good speed, coming right down the incline. I next saw the car when it was right next to me, right under this arm. It just seemed as if it was right under the right arm. The bumper struck me on my left hip. The car struck me about a foot before the center. The car carried me some distance. It threw me, because I rolled. At the time I was struck by the car, Mr. Kurth and his daughter were on the corner. They were across.”

She further testified that, at the time she saw the car in front of Mr. Meltzer's home, the car had two lights upon it, lighted. She further testified:

“I didn't see it from the time it was in front of the Meltzer house until the collision occurred.All I saw was the light, and this part striking me. I turned my back just before the car hit me. I was just about a foot this side (southeasterly) of the center.”

Louis Kurth testified:

“When I got across the street, I happened to look around, and I saw a big automobile just running into Mrs. Geffert. In my estimation, the automobile was on the east side of the center of the street, the left side going toward town. After Mrs. Geffert was struck by the car, she rolled down the hill. She was thrown, and then she was turned over and over, I should say she was thrown perhaps 5 feet. The car was facing on Blair street, on the south corner facing toward Johnson street, I would say that the front wheels of the car were over the crossing toward Johnson street (meaning pointing southerly down Blair street). The bumper came in contact with her person. When I got to East Gorham street, I looked up and down to see if there was any car coming. I was right on the crossing, on the iron plate, when I looked. I saw no car. I looked both ways. I had my child by the hand all the way over. My attention was called to the automobile when I got across on the other side of the street. I noticed a car coming along pretty fast. He did not sound his horn. When I saw this automobile strike this woman, she was on the left side, about 2 feet from the center of the pavement. That would be on the southeast side. At that time Mrs. Heim and my wife and the little baby were still on the crossing. They were just about a step off the iron plate on the southeast side of the street. The electric lights were burning at that time, and I could see if any automobile was coming. It was not so dark but what I could see an automobile within 150 or 200 feet.”

Mrs. Lottie Kurth testified:

“When we got to the iron plate on East Gorham street, Mrs. Geffert was right ahead of us, and the gocart was almost pushing into her, and I looked up this way, because she warned us to look out to see that there wasn't any car coming. And I didn't see any, and I don't know what Mrs. Heim did, and I didn't see the car coming. I didn't see any car to the right of me going toward town. When I started across the street, Mrs. Geffert was in front of us. The gocart was in front of Mrs. Heim, and I had my right hand on that. Mrs. Heim and I were on the iron plate, and Mrs. Geffert was ahead of us in the street. When I seen the accident, I took the cart and pushed it back on the sidewalk, because Mrs. Heim let go of the cart and run. I was on the iron...