Gehrke v. Cochran
| Decision Date | 05 February 1929 |
| Citation | 198 Wis. 34,223 N.W. 425 |
| Parties | GEHRKE v. COCHRAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Outagamie County; Edgar V. Werner, Circuit Judge. Reversed.
On motion for rehearing. Rehearing denied.
For former opinion, see 222 N. W. 304.--[By Editorial Staff.]Benton, Bosser & Tuttrup, of Appleton, and Oliver H. Day, of Green Bay, for appellant.
Bradford & Bradford, of Appleton, and Jones & Key, of Chicago, Ill., for respondent.
On Motion for Rehearing.
The respondent's brief on rehearing presents the fact, not heretofore stated in the presentation of the case to this court, that there was no request for a special verdict.
In appellant's main brief the cases were cited which establish the rule that, where the proof presents several grounds of negligence, the special verdict must be so framed as to require a finding of the jury on each separate ground of negligence. The respondent, in his main brief, treated the case as if the record presented the question of the sufficiency of the verdict and did not state that no request for a special verdict had been made by either party.
[1] The court must of necessity rely upon counsel to fully state the facts of the cases which it is called upon to decide. It now appearing, however, that there was no request for a special verdict, the trial court was at liberty to submit the case upon a special verdict,or upon a general verdict, or upon the verdict which was used in this case. Had either of the parties requested that the case be submitted upon a special verdict, a different question would have been presented. Halamka v. Schneider (Wis.) 222 N. W. 821.
The judgment would not have been reversed for failure to separately submit the several grounds upon which it was claimed that plaintiff was negligent had respondent advised the court that no request for a special verdict had been made.
[2] But it does not follow that the mandate should be changed. The manner of submitting the case was such as might well lead the jury to believe that the plaintiff's conduct was not to be judged by the same standards as the conduct of the defendant. A re-examination of the record leads the court to believe that the method employed in submitting the case may have caused a miscarriage of justice in the determination of the issues as to contributory negligence, and that the plaintiff ought to have a trial in which the issue of negligence is submitted in the same form and...
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...submitting to the jury an omnibus question as to contributory negligence. This was error. Gherke v. Cochran, 198 Wis. 34, 222 N. W. 304, 223 N. W. 425. However, in this case there was no resulting prejudice to the defendant. There was only one item of negligence with respect to which there ......
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