Gewanski v. Ellsworth

• Decision Date: 13 November 1917
• Parties: GEWANSKI v. ELLSWORTH.
• Court: Wisconsin Supreme Court

166 Wis. 250

164 N.W. 996

GEWANSKI

v.ELLSWORTH.

Supreme Court of Wisconsin.

Nov. 13, 1917.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Emma Gewanski against E. O. Ellsworth. Judgment for defendant, and plaintiff appeals. Affirmed.

Action for personal injuries. Plaintiff brought this action against the defendant to recover damages for personal injuries sustained as a result of being run down by an automobile owned by defendant and driven by Chauffeur Harry Gilmore. By its answers to questions submitted on a special verdict the jury found as follows:

(1) That plaintiff was struck by an automobile owned by the defendant and which was being driven by Harry Gilmore, the chauffeur, on the night of May 31, 1915, causing the injuries complained of.

(2) That Harry Gilmore was actually in the prosecution of the defendant's business and in the furtherance of his interests at the time and place of the collision.

(3) That at the time or immediately prior to the time of the collision the automobile was being driven at the rate of 21 miles per hour.

(4) That the oil dash or side lights and the tail lights were lighted.

(5) That Harry Gilmore was wanting in ordinary care in driving and managing the defendant's automobile immediately prior to and at the time of the collision.

(6) That such want of ordinary care was the cause of plaintiff's injuries.

(7) That want of ordinary care on the part of the plaintiff did not proximately contribute to her injuries.

(8) That the damages were $8,000.

After verdict and upon motion of the defendant the court changed the answer of the jury to question No. 2 from “Yes” to “No,” and on the verdict as so changed ordered judgment for the defendant, from which judgment plaintiff appeals.Cochems & Wolfe and Fred A. Landeck, both of Milwaukee (Peter C. Kolinski, of Milwaukee, of counsel), for appellant.

Paul D. Durant and Burr J. Scott, both of Milwaukee, for respondent.

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

[1] It is claimed that the trial court erred in changing the answer to question No. 2 of the special verdict, for the reason that the evidence was sufficient to sustain the finding of the jury made in response to that question. Stating the facts as they appear from the testimony, resolving any controversies or doubts in favor of the appellant, we have the following: The chauffeur, Gilmore, had been employed by the defendant for about a year and a half preceding the time of the accident. Gilmore's home was 4 1/2 miles distant from respondent's home, and Gilmore was the owner of a car in which he was accustomed to drive to and from his work. The respondent had two cars, and a garage with storage facilities for two cars only. Gilmore had been accustomed to make slight repairs upon his own car in respondent's garage, and on the day in question he had taken his car apart for the purpose of repairing it. He was summoned to the performance of his duties, and did not return to the garage until...