Gerbing v. McDonald

Decision Date04 March 1930
Citation201 Wis. 214,229 N.W. 860
CourtWisconsin Supreme Court


Appeal from a judgment of the Circuit Court for Oneida County; A. H. Reid, Circuit Judge.


Fritz, J., dissents.

Action commenced August 1, 1928; judgment for plaintiff entered March 26, 1929. Defendant appeals.

Actions by Gerbing and his wife for injuries sustained in a collision between plaintiff's automobile and defendant's truck, alleged to have been caused by negligence of the driver of the truck. Gerbing was driving southwest on a county trunk highway. His wife, their small child, and Rev. Golnick were riding with him. The defendant's truck was going north on a state trunk highway. The roads joined at an angle of approximately forty-five degrees. The collision occurred south of the apex of the angle made by the intersecting roads. A grass plot approximately ninety by seventy by sixty feet occupied the angle. At the north of the plot was a lead connecting the two roads, not graveled, little used, divided at the west end into two leads to the north and south on the state trunk. There were no stop signs at the intersections. A bank and some bushes at the east side of the county trunk road shut off the view somewhat. Both roads were graded and graveled. The collision occurred about 4 o'clock in the afternoon, shortly after the beginning of a drizzling rain. There was no other traffic.

From the evidence it might reasonably be inferred that Gerbing was driving twenty-five miles an hour as he approached the intersection and that he slackened his speed to fifteen miles and shifted gears from high to intermediate. He saw the truck when it was two hundred fifty feet away. He crossed the middle of the state trunk road and was squared away south on his right side of the road when the collision occurred. The truck was traveling forty miles an hour on its left side of the road and turned further to the left just before the collision. Gerbing turned his car further to the right partly on the shoulder of the road in effort to avoid the collision. The tracks of the truck were plainly visible after the collision.

The jury by special verdict found the driver of the truck negligent as to speed, lookout, line of travel, and in turning left immediately before the collision, and that each of these negligent acts was a cause of the collision; found the plaintiff not negligent; and assessed the husband's damages at $948.15 and the wife's at $2,000.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

O'Melia & Kaye, of Rhinelander, for respondent.


[1] The appellant lays thirteen grounds of error. Only one of them is to the point that the findings of the jury as to negligence are not supported by the evidence. This is in effect that Gerbing was guilty of contributory negligence as matter of law, but it is manifest from the above statement of facts that his negligence was a jury question.

[2] It is urged that a mistrial should have been ordered because the fact that the defendant carried indemnity insurance was injected into the case. Two questions were put, one to defendant on adverse examination, and one on the trial whether he made some statement at the sheriff's office pertaining to the collision. Objection was made and properly overruled. The answers made were not responsive, and stated that defendant had insurance. Counsel moved to strike out the answers and for a mistrial. The court struck out the answers so far as they referred to insurance, but denied the mistrial, and stated to the jury correctly and very fully and forcibly that insurance had nothing to do with the case. In view of the very full and forceful statement to the jury, we cannot say that the court was not justified in denying the motion.

[3] Error is claimed because the court refused to instruct, in substance, that, as plaintiff was making a left turn on entering the state trunk road and required by statute to keep to the right of the intersection in making his turn, he was bound to take the lead north of the grass plot to get onto the state trunk, because the center of the intersection is in the grass plot. This contention is manifestly without merit. There are plainly three intersections involved, one at each angle of the triangle. A vehicle using the north lead turning left must keep to the right of the intersection of the roads at this point.

[4] Appellant claims the court erred in receiving incompetent evidence consisting of “conclusions” of witnesses. Questions in form calling for conclusions were asked and answered over objections. But in such cases the conclusion was plainly drawn and the only one inferable from facts previously testified by the witness. If a witness has testified that tracks made by an automobile were left of the center of a road, it is manifest that the automobile was left of the center when it made the tracks, and it is quite harmless, although it be a conclusion for the witness to say that the automobile went to the left of the center of the road, although he did not see it. The errors claimed under this head are all of this nature.

[5] Error is claimed because the court permitted the jury to assess doctor's bills as an element of plaintiff's damages in the absence of evidence of the reasonable value or necessity of the services charged for. The weight of authority seems to be that, where the character of the injury and of the treatment and the services of the physician and the amount paid for the service are fully proved, this constitutes evidence from which the jury may allow damages, although there is no proof of either necessity or the reasonable value of the services. Georgia R., etc., Co. v. Tompkins, 138 Ga. 596, 75 S. E. 664;Louisville & I. R. Co. v. Frazee, 179 Ky. 488, 200 S. W. 948;Abbitt v. St. Louis T. Co., 104 Mo. 534, 79 S. W. 496;Western Gas Const. Co. v. Danner (C. C. A.) 97 F. 882. Mere proof of injury and employment of and treatment by a physician entitles the jury to make an award for the service, in the absence of evidence of necessity for or the value of the service. Farley v. Charleston, etc., Co., 51 S. C. 222, 28 S. E. 193, 401;Moran v. Dover, etc., St. R. Co., 74 N. H. 500, 69 A. 884, 19 L. R. A. (N. S.) 920, 124 Am. St. Rep. 994;Scullane v. Kellogg, 169 Mass. 544, 48 N. E. 662;Hart v. Charlotte, etc., R. Co., 33 S. C. 427, 12 S. E. 9, 10 L. R. A. 794. The contrary is held in Derr Const. Co. v. Gelruth, 29 Okl. 538, 120 P. 253;Dahlstrom v. N. P. R. Co., 98 Wash. 390, 167 P. 1078;Goodson v. New York City R. Co. (Sup.) 94 N. Y. S. 10. It is held in Farnham v. Akron Tire Co., 98 Wash. 484, 167 P. 1081, and Clarke v. Westcott, 2 App. Div. 503, 37 N. Y. S. 1111, that such evidence is insufficient, but, in absence of objection to receipt of the evidence, justifies an award by the jury in such sum as they deem reasonable and necessary. We are clear that the items for hospital expenses, which as matter of common...

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