Gherke v. Cochran

• Decision Date: 04 December 1928
• Citation: 222 N.W. 304,198 Wis. 34
• Parties: GHERKE v. COCHRAN.
• Court: Wisconsin Supreme Court

198 Wis. 34

222 N.W. 304

GHERKE

v.COCHRAN.^a1

Supreme Court of Wisconsin.

Dec. 4, 1928.

Appeal from a judgment of the Circuit Court for Outagamie County; Edgar V. Werner, Circuit Judge. Reversed.

Action by William E. Gherke against Thomas H. Cochran, begun March 16, 1927, to recover damages for injuries sustained in an automobile collision. From a judgment dismissing the action entered March 8, 1928, the plaintiff appealed.

The plaintiff was approaching a state trunk highway from the south, driving on a county trunk road, intending to cross to the northerly side of the state trunk, and to then proceed in a westerly direction. The defendant was driving in an easterly direction on the southerly side of the state trunk. After the collision, the two cars were both on the northerly side of the state trunk. The jury found both parties guilty of negligence.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.

STEVENS, J.

1. The proof presented issues of fact for the jury. The findings of the jury both with reference to the negligence of the defendant and the contributory negligence of the plaintiff are supported by proof. This conclusion would lead to an affirmance of the judgment were it not for the manner in which the case was submitted to the jury.

[1][2] 2. The pleadings and the proof present three possible grounds of negligence on the part of the plaintiff. These three grounds were all submitted to the jury by this single question:

“Was William E. Gherke, the plaintiff, guilty of any want of ordinary care which contributed to produce the injury he sustained and the damages to his car at the time and place in question?”

This question is answered in the affirmative.

Under this form of question part of the jury might have found the plaintiff negligent on one ground; others might have based their finding on a second and still others upon a third ground of negligence, “resulting in a situation where all of the jurors agreed that there was negligence but did not agree upon the grounds thereof. He who is charged with negligence in several particulars is entitled to have a finding of the jury upon the existence of every set of facts upon which negligence is predicated. * * * It is the function of a special verdict to secure a finding by the jury on each question litigated. In negligence cases each ground of negligence constitutes a distinct litigated question, and proper practice requires that the jury be given an opportunity to find specially with reference to each particular ground of alleged negligence. This cannot be accomplished by the submission of an omnibus question in which the jury is required to find generally upon the question of negligence. Such verdicts have been sustained in cases where negative answers have been returned to the general question of negligence and the jury were instructed that if they found certain facts to exist they should answer the question in the affirmative, as in Kadolph v. Herman, 166 Wis. 577, 166 N. W. 433. In such cases the finding of an absence of negligence presents a different question from that resulting in case of an affirmative finding. The negative answer indicates that in the minds of the jury none of the alleged grounds of negligence was proven.” Matuschka v. Murphy, 173 Wis. 484, 487, 180 N. W. 821, 822.

The statute providing for special verdicts “contemplates the right of the party to a separate finding of the jury upon each such specific question of fact. It is the duty of the court to administer the statute so that the result aimed at be attained. If the court may refuse to submit such specific questions and simply submit the general question of negligence, then the statute is practically eliminated from the statute book, and in every negligence case two or three general questions covering simply ultimate conclusions of fact and law, and amounting to but little more than a general verdict, will take the place of the findings of specific fact contemplated by the statute.” Rowley v. Chicago, M. & St. P. R. Co., 135 Wis. 208, 217, 115 N. W. 865, 868.

[3] The question whether plaintiff was guilty of negligence which would bar his recovery presents the same problems to the jury that are presented by the issues raised as to the negligence of the defendant. The same rules apply to the submission of plaintiff's negligence as to the submission of the defendant's negligence. There is the same necessity for a separate finding upon each alleged ground of negligence on the part of the plaintiff as on the part of the defendant.

[4] 3. In submitting the question whether the single ground of negligence of which it was alleged that the defendant was guilty was the proximate cause of plaintiff's injuries, the court adopted the form of verdict that was commended in Berrafato v. Exner, 194 Wis. 149, 157, 216 N. W. 165, but the court evidently overlooked the fact that this court in that case suggested that the same method be adopted in submitting the issues of proximate cause in connection with the question of plaintiff's negligence.

It will be noted that the question on the contributory negligence of the plaintiff which is quoted above not only asks the jury to pass upon three separate grounds of negligence, but that it involves the issue whether each of these three...