Groeschner v. John Gund Brewing Co.

• Decision Date: 08 February 1921
• Citation: 173 Wis. 366,181 N.W. 212
• Parties: GROESCHNER v. JOHN GUND BREWING CO.
• Court: Wisconsin Supreme Court

173 Wis. 366

181 N.W. 212

GROESCHNER

v.JOHN GUND BREWING CO.

Supreme Court of Wisconsin.

Feb. 8, 1921.

Appeal from Circuit Court, La Crosse County; F. C. Higbee, Judge.

Action by Mabel Groeschner, administratrix of the estate of Frank Groeschner, deceased, against the John Gund Brewing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages for the death of plaintiff's intestate, who was a member of the police force of the city of La Crosse. At the time of his death he was a motorcycle officer. North Third street extends in a northerly and southerly direction, is brickpaved, 46 feet wide from curb to curb, and a single street car track occupies the center of the street. State street intersects said Third street at right angles, is also brickpaved, and is 42 feet in width from curb to curb. This intersection is one of the busiest thoroughfares in the city.

On the 18th day of November, 1916, between the hours of 11 and 12 o'clock a. m., deceased was proceeding north on the right side of Third street on his motorcycle. About 42 feet south of the intersection of Third and State streets he turned out to pass an ice wagon; proceeded northward across State street, and collided with defendant's truck, in close proximity to the northeast corner of the intersection; was thrown under the truck and dragged some 40 feet along State street before the truck was stopped.

The case was tried before a jury, and a special verdict returned, finding the driver of the defendant's truck guilty of negligence constituting the proximate cause of the injury, and acquitting the deceased of negligence. Upon this verdict judgment was rendered for the plaintiff. From the judgment so rendered the defendant brings this appeal.

Geo. H. Gordon and Law & Gordon, all of La Crosse, for appellant.

Otto M. Schlabach, of La Crosse (Jesse E. Higbee, of La Crosse, of counsel), for respondent.

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

[1] It is first argued that the deceased was guilty of contributory negligence as a matter of law, and that a verdict should have been directed in favor of the defendant. The deceased was proceeding north on the east side of Third street at a moderate rate of speed. The defendant's truck was going south on the west side of Third street, and as it approached the intersection of Third and State streets the driver thereof turned to the left for the evident purpose of cutting the corner as he turned east on State street, and the collision occurred within a few feet of the northeast corner of the intersection. In this the driver of the truck was guilty of a palpable violation of the law of the road. His negligence is unquestioned.

[2] It is argued on the part of appellant that the deceased, if he had looked, could have seen the truck in front of him, and that his failure so to do constituted negligence as a matter of law. At the same time it is said that the intersection of Third and State streets is one of the busiest thoroughfares in the city of La Crosse. If this is true, manifestly the driver of the motorcycle was required to be sufficiently alert to avoid traffic of a character which he was required to anticipate. The deceased was not required to anticipate that he would encounter a truck on the wrong side of the street. At any rate, we are clear that he cannot be held guilty of negligence as a matter of law. It has been said by this court that questions of negligence arising out of automobile accidents are peculiarly for the jury, and that such questions will not be decided as a matter of law except under the clearest circumstances. Shortle v. Sheill, 178 N. W. 304. The case was properly submitted to the jury.

It is urged that the court erred in not granting the defendant's motion for a change of venue. This case was instituted by Otto M. Schlabach, Esq., as attorney for the plaintiff. It was not reached for trial until about the 15th day of the term. The defendant then discovered that Jesse E. Higbee, Esq., a son of the presiding judge, had been employed to assist Mr. Schlabach in the trial of the plaintiff's case. Upon learning this, the defendant filed an affidavit of prejudice, sworn to by the secretary of the company, in which the deponent stated that his ground for belief that defendant could not have a fair trial of said action on account of the prejudice of the presiding judge was based upon the fact that Jesse E. Higbee, who had been retained to assist plaintiff's counsel, was the son of the presiding judge, and that the information that he was to assist plaintiff's counsel had come to deponent subsequent to the commencement of the term, for which reason he was not able to make the affidavit on or...