General Acc. Fire & Life Assur. Corp. v. Cosgrove
| Decision Date | 05 April 1950 |
| Citation | 42 N.W.2d 155,257 Wis. 25 |
| Court | Wisconsin Supreme Court |
| Parties | GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION, LIMITED, v. COSGROVE. |
Lines, Spooner & Quarles, Milwaukee, Charles B. Quarles, Milwaukee, of counsel, for appellant.
Quarles, Spence & Quarles, Milwaukee, Kenneth P. Grubb and Edmund W. Powell, Milwaukee, of counsel, for respondent.
Both parties agree that the sole question in this case is whether damages flowed to appellant as a result of respondent's failure to settle the bill of exceptions. This is obviously a question of law properly disposed of on motion for summary judgment.
Appellant further concedes that it had the burden of satisfying the trial court that it sustained damages as a result of respondent's negligent conduct. It contends that it has discharged such duty in this case and that the trial court should have recognized that fact and entered judgment for it.
Examination of the record in the original action is required.
The suit by Teofilo and his parents against Luber and the appellant was for injuries to John Teofilo who was nine years of age at the time he was struck by the automobile driven by Lubar and insured by appellant. The collision occurred in the daytime at a bridge on Highway 45 between Fond du Lac and Oshkosh, which spans a creek running into Lake Winnebago, which is immediately east of the highway. The highway is twenty feet wide. The bridge is thirty feet in length and consists of a ten-foot slab on either side of the highway with a metal rail on the outer edge of each slab.
As Lubar approached from the south John Teofilo and his brother were at the rail on the east end of the bridge. Their companion, a boy of about the same age, was at the west rail. He called attention to something in the creek and John Teofilo started across the bridge. He was struck by the Lubar automobile.
Upon the trial the respondent moved for a directed verdict in favor of his client, appellant here. This motion was denied.
The case was submitted to the jury upon a special verdict. It found Lubar free from negligence with respect to lookout, speed, and management and control. It found him negligent in failing to sound his horn as he approached the three boys upon the bridge. In its verdict the jury found the Teofilo boy negligent with respect to lookout and in failing to yield the right of way to the Lubar automobile. It apportioned the total causal negligence twenty-five per cent to Teofilo and seventy-five per cent to Lubar.
On motion after verdict the court refused to change any of the answers in the verdict or to grant judgment to the defendants notwithstanding the verdict.
Upon that state of the record the trial court held that there was no clear proof that the defendants would have been successful upon appeal of the former judgment and that therefore the appellant had failed to establish it had sustained damages through respondent's failure to settle the bill of exceptions and perfect its appeal. This appears to place a fairly heavy burden upon the plaintiff in this case, but, at pointed out by the trial court, the law is well established in the courts of this country. This burden plaintiff accepts.
The question then is: Was the negligence of John Teofilo so clearly equal to the negligence of Lubar as a matter of law that the trial court in the instant case had the duty of holding that the former case would have been reversed upon appeal.
Counsel for appellant cite a number of cases where adult pedestrians were involved, including Ebel v. Rehorst, 1933, 212 Wis. 122, 248 N.W. 799, and Hustad v. Evetts, 1939, 230 Wis. 292, 282 N.W. 595 (syllabus), in which it was held: 'The causal negligence of an intelligent, experienced milk deliveryman, stepping from the left side of his delivery truck directly into the path of an oncoming automobile about twenty feet away, without first looking for traffic, was as great as the causal negligence of the driver of the automobile as a matter of law.'
Counsel also rely on Crawley v. Hill, 1948, 253 Wis. 294, 34 N.W.2d 123. There an adult, in running across the highway, was struck by the Hill automobile and it was held that the pedestrian's negligence was equal to the driver's as a matter of law.
Respondent relies upon many cases where the child...
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