Halamka v. Schneider

• Decision Date: 08 January 1929
• Citation: 197 Wis. 538,222 N.W. 821
• Parties: HALAMKA v. SCHNEIDER ET AL.
• Court: Wisconsin Supreme Court

197 Wis. 538

222 N.W. 821

HALAMKA

v.SCHNEIDER ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1929.

Appeal from a judgment of the Circuit Court for Milwaukee County; Oscar M. Fritz, Circuit Judge. Affirmed.

Action by Anna Halamka begun January 29, 1927, against Edward J. Schneider and the Inter-State Exchange, his insurance carrier, to recover for personal injuries sustained when plaintiff was struck by an automobile driven by defendant Schneider. From a judgment for the plaintiff entered July 10, 1928, the defendants appealed.

The jury found that the defendant Schneider was guilty of negligence which was the proximate cause of the injuries sustained by the plaintiff, and that the plaintiff was not guilty of negligence.

Eschweiler, J., dissenting.Schoetz, Williams & Gandrey and E. L. McIntyre, all of Milwaukee, for appellants.

Michael Levin, of Milwaukee (Joseph B. Scheier, of Milwaukee, of counsel), for respondent.

STEVENS, J.

1. The complaint alleges and the proof tends to establish several separate grounds of negligence on the part of the defendant, which were all submitted to the jury by the single question: “Was the defendant guilty of negligence in operating his automobile as he approached and collided with the plaintiff?”

[1] The record contains no request by either party that the case be submitted upon a special verdict. In the absence of such a request the court was at liberty to submit a case upon a special verdict, or upon a general verdict, or upon the verdict which was used. Section 270.27 of the Statutes. Had either of the parties requested that a special verdict be so framed as to require a finding on each of the separate grounds of negligence, a different question would have been presented.

[2][3] 2. Defendants contend that the plaintiff was guilty of negligence as a matter of law. Plaintiff testified that she did not leave the sidewalk until she had a clear vision in the direction from which defendant's automobile was coming; that she saw this automobile approaching a good half block away, and that she thought she had time to cross and continued to look to the right and to the left as she crossed the street; that she saw the defendant's automobile twice after she left the sidewalk, and that it was north of the opposite crosswalk, and that each time she saw the defendant's automobile she concluded that the automobile was far enough away so that she could safely cross the street; that after she last saw the defendant's automobile she took about two steps before she was struck. This proof presented an issue of fact for the jury on the question of plaintiff's negligence. The fact that her testimony on adverse examination was not in accord with that given upon the trial was a matter for the jury to consider in determining the weight that should be given to her testimony.

[4] 3. The court inadvertently instructed the jury that the burden of establishing contributory negligence was upon the plaintiff. While this was an erroneous instruction, it was one that could not have prejudiced the rights of the defendant.

[5] 4. The court instructed the jury that it was the duty of the defendant “to keep his machine under such control as will be adequate to prevent probable injury under the circumstances then and there existing in so far as they are known, or ought in the exercise of ordinary care to be known, or to be anticipated by him.” Standing alone this instruction seems to impose upon the driver of an automobile the absolute duty to have his machine under such control as would be adequate to prevent injury to a pedestrian arising out of any situation which was known or which ought to have been known to the defendant. But this...