Grasser v. Anderson

• Citation: 224 Wis. 654,273 N.W. 63
• Parties: GRASSER v. ANDERSON et al.
• Decision Date: 27 April 1937
• Court: United States State Supreme Court of Wisconsin

224 Wis. 654

273 N.W. 63

GRASSER

v.ANDERSON et al.

Supreme Court of Wisconsin.

April 27, 1937.

Appeal from a judgment of the Circuit Court for Kenosha County; E. B. Belden, Judge.

Affirmed.

Action brought by George F. Grasser, as special administrator of the estate of Lucy M. Grasser, deceased, to recover from the defendants, Wayne Anderson and his automobile liability insurance carrier, damages for the injuries and death of Lucy M. Grasser, as the result of alleged negligence of Anderson in operating an automobile.

The defendants answered denying liability, and filed cross-complaints for contribution by George F. Grasser and his insurance carrier. In response thereto the latter answered denying liability, and Grasser also counterclaimed to recover damages for his personal injuries and the demolition of his automobile. The resulting issues of fact were submitted to a jury for a special verdict; and upon motions after verdict some of the jury's answers were approved by the court, and for others it substituted its findings. Upon the verdict and findings, as modified, judgment was entered dismissing the plaintiff's cause of action to recover, under sections 331.03 and 331.04, Stats., for the death of Lucy M. Grasser, by wrongful act, and also Grasser's counterclaim to recover for his personal injuries and the damage to his automobile; but for the pain and suffering sustained by Lucy M. Grasser, the recovery of $300 was awarded against Anderson and Grasser and their respective insurers, with the proviso that upon the payment of more than half of that award by either of those individuals or their insurers, they were entitled to contribution for such excess by the parties in default. The plaintiff appealed from that judgment.Shannon & Higgins, of Kenosha, for appellant.

Alfred E. La France and Wilbershide & Baumblatt, all of Racine, for respondents.

FRITZ, Justice.

On this appeal the plaintiff George F. Grasser, as special administrator of the estate of Lucy M. Grasser, deceased, contends that the court erred in changing certain answers of a special verdict and then erred in so far as its judgment, entered upon the verdict as changed, dismissed the plaintiff's cause of action, under sections 331.03 and 331.04, Stats., for damages for the death of the deceased by wrongful act; and also denied recovery for hospital, medical, and burial expenses, and the perpetual care of a cemetery lot, as damages sustained by the estate of the deceased.

All of the damages in question were sustained as the result of a collision at 11:30 p. m. on May 29, 1936, between automobiles operated by George F. Grasser and the defendant Wayne Anderson. The collision occurred at the eastern termination and right-angled junction of a short 30 feet wide graveled road with the west lane of concrete highway No. 42, which consisted of three 10 feet wide lanes running north and south. The place of collision was about 200 feet south of the north limits of the city of Kenosha, and 140 feet south of the apex of an acute angle formed by the junction of former concrete highway No. 42, coming from the south, with the present highway No. 42 (named Alford drive within the city limits). Anderson approached the place of collision as he drove south in the west lane of highway No. 42. Grasser, approaching from the south, had driven north on the east lane of that highway until, when he was from 75 to 100 feet south of the gravel road entering from the west, he drove northwest into the center lane. Before he did that he saw the lights of Anderson's automobile, and the latter saw Grasser's lights. There is a conflict in the evidence as to Grasser's course after he first entered that center lane. Either he proceeded 10 to 15 feet northward in that lane and then turned to his left to cross the west lane, or-as the court concluded in passing upon the motions after verdict-he first turned back toward the east lane and then “suddenly without visible sign or signal, other than the lights indicating a turning from lane to lane *** turned sharply to his left to enter a short cross road from Alford Drive to Highway 42 and directly across the path of the Anderson car.” Whatever the facts may be in that respect, the evidence establishes that upon his turning left to cross, and when his automobile was but partly across the west lane, the right front part of Anderson's automobile struck Grasser's at about the right rear wheel and door.

The jury found that the collision was caused by Anderson's negligence as to speed, lookout, management, and control, and yielding the right of way. In relation to Grasser, the jury found that he was not negligent as to speed, giving a visible signal of intention to make a left turn, and management and control; but that, on the other hand, the collision was caused by his negligence as to lookout, yielding the right of way, and making the left turn; and, in that connection, the jury specifically added, on their own accord, that Grasser was negligent as to lookout because he “should look before crossing westerly lane”; and that his negligence in making the left turn was a cause “because he should have stopped before his approach to the intersection.” In finding what percentage of the total causal negligence was attributable to each of the parties, the jury answered that 5 per cent. was attributable to Grasser, and 95 per cent. to Anderson. In ruling upon the motions after verdict, the court changed (1) the jury's finding that Anderson was negligent as to yielding the right of way, by holding that he was not negligent in that respect; (2) the jury's finding that Grasser was not negligent as to management and control, by holding that he was guilty of causal negligence in that respect; and (3) the jury's finding as to the percentages, by holding that Anderson's negligence was not more than 50 per cent. and Grasser's was not less than 50 per cent. of the total causal negligence.

[1][2][3][4][5][6] The primary question on this appeal is whether the court erred in substituting its determination that Anderson was not negligent, in respect to yielding the right of way, for the jury's finding that he was. The latter's finding on that issue was clearly inconsistent with its finding that there was also causal negligence on the part of Grasser in not yielding the right of way. Both findings could not be approved. But could the court hold, as a matter of law-in view of...