Gross v. Gross, 9454.

• Decision Date: 29 June 1948
• Docket Number: No. 9454.,9454.
• Citation: 169 F.2d 199
• Parties: GROSS et al. v. GROSS et al.
• Court: U.S. Court of Appeals — Seventh Circuit

169 F.2d 199 (1948)

GROSS et al. v. GROSS et al.

No. 9454.

Circuit Court of Appeals. Seventh Circuit.

June 29, 1948.

Charles F. Smith and Richard P. Tinkham, Jr., both of Wausau, Wis., for appellants.

Edward J. Byrne and Robert L. Spangel, both of Appleton, Wis., and Leonard F. Schmitt, of Merrill, Wis., for appellee.

Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This joint action was brought by William Gross, Mrs. William Gross, Emma Gross and Charles Steinfest against Frank T. Stroik and Home Mutual Insurance Company, a corporation, defendants, to recover damages for personal injuries incurred in an automobile collision between the car driven by Stroik and one driven by the plaintiff, William Gross, in which the other plaintiffs were passengers. Thereafter, the Zurich General Accident & Liability Insurance Company was, on motion of Stroik and his insurance carrier, impleaded as a defendant as the insurer of the plaintiff, William Gross.

The jury found the plaintiff, William Gross, negligent and to blame for the accident to the extent of 20%, and the defendant, Stroik, negligent and to blame for the accident to the extent of 80%, and that the other three plaintiffs (passengers in the Gross car) did not assume the risk of negligence on the part of William Gross, their driver.

The judgment appealed from is predicated upon a special verdict of the jury. The judgment in favor of the plaintiff, William Gross, is against the defendant, Stroik, and his insurer, and that in favor of the plaintiffs, Mrs. William Gross, Emma Gross and Charles Steinfest, is against both the defendant, Stroik, and his insurer, and the plaintiff, William Gross, and his insurer. It is only the joint judgment against the defendant, Stroik, and the plaintiff, William Gross, and their insurers in favor of the other plaintiffs (passengers in the car of William Gross) that is involved in this appeal.

There is, therefore, no question here a to the negligence of the defendant, Stroik, or of his liability or of that of his insurer. It is only the liability of the plaintiff, William Gross, and his insurer to the other plaintiffs (passengers in his car) with which we are concerned. The parties before this court, therefore, are William Gross and his insurer as appellants, and Mrs. William Gross, Emma Gross and Charles Steinfest, and the insurer of Frank Stroik as appellees.

The special verdict was in the form of answers to certain specific questions. By such answers the jury found that both William Gross and Stroik were negligent in the manner of operating their automobiles and that the collision was the natural result of such negligence. The sole question and answer upon which the liability of William Gross and his insurer to the other plaintiffs (passengers in Gross' car) is predicated is as follows:

"If you find this collision was the result of negligence on the part of William Gross, then answer this question:

"Sixth Question: Did the plaintiffs, Mrs. William Gross, Emma Gross, and Charles Steinfest, assume the risk of such negligence on the part of William Gross?"

To this question the jury answered as to each of the passenger plaintiffs, "No."

While numerous questions are raised and discussed, we are of the view that only two questions need be considered:

(1) Is the credible evidence sufficient to support the jury's finding of negligence on the part of William Gross? If not, the court after verdict should have allowed the motion to change the jury's answer to the question inquiring as to his negligence from "Yes" to "No."

(2) Even though the plaintiff, Gross, was negligent as found, was such negligence sufficient to authorize a judgment against him and his insurer in favor of the other plaintiffs (passengers in Gross' car)?

On January 18, 1946, at about 5:30 p. m., William Gross, with his wife, Mrs. William Gross, his mother Emma Gross, and Charles Steinfest as passengers, were driving in William Gross' 1940 four-door Chrysler sedan in a southeasterly direction on State Trunk Highway 10, an eighteen foot concrete highway. At the same time and place, Stroik was driving his automobile in a northwesterly direction on the same highway, with August Bleskey as a passenger, intending to turn left into an intersection town road that led off to the south toward Bleskey's home. It was a clear night, there was no other traffic on the road except a car following about a block and a half behind the Stroik car, going in the same direction. Both cars were properly lighted.

William Gross testified that as he approached the top of a slight grade, at a speed of about forty-five to fifty miles per hour, he first saw the Stroik car about five hundred feet away, approaching him on this highway, and at that time Gross was about two hundred and seventy-five feet northeast of the side road. The Stroik car was traveling on its right or northerly half of Highway 10, and the Gross car was traveling on its right or southerly half. As Gross got within about twenty or twenty-five feet of this intersection, he testified that the Stroik car started to turn quite fast and at a direct angle to make the turn to the left, and turned right in front of him. Stroik testified that as he came up to this side road he practically stopped opposite the side road and looked and saw no car coming. Then he stepped on the gas a little bit and for the first time saw the lights of a car coming from the northwest over the hill. He said the accident happened in a matter of seconds after that. He also testified that the Gross car was about fifty feet away when he first saw its lights, although he admitted that when at the intersection a car approaching from the opposite direction was visible for a distance of three hundred feet. He also testified that he gave no signal, sign or warning of his intention or purpose of making a left turn.

Two other occurrence witnesses testified, Bleskey, a passenger in the Stroik car, and Figarino, the driver of the car which was following Stroik. It is unnecessary to relate the testimony of these witnesses except to state that the testimony of Bleskey throws no light on the occurrence itself. It may be pertinent to note that Figarino testified that the Gross car was in sight at the time Stroik started to turn, later stated that Stroik had started his turn before he (the witness) saw the lights of the approaching Gross car, and still later testified that he saw the lights of the Gross car at the same time Stroik started to make his turn. Plaintiffs who were passengers in Gross' car testified that they had been traveling at a speed of from forty-five to fifty miles per hour for some sixteen miles and that none of them protested or had any reason to protest against his method of driving or his speed, and that at the time of the accident he was driving on the proper side of the road.

The witness Paetzold, who was a civil engineer and county surveyor of Marathon County, Wisconsin, and whose qualifications were conceded, prepared a profile or map showing, among other things, the elevation of the highway in both directions from the point of collision. From this map he testified, "Assuming that a man was sitting in his car at a height of five feet at the south line of the intersection point of collision, he could see a car approaching on the highway from the northwest when it was about eight hundred feet away." He also testified that when standing at the intersection he observed that a car coming from the...