Harter v. Dickman

• Court: Wisconsin Supreme Court
• Writing for the Court: NELSON
• Citation: Harter v. Dickman, 209 Wis. 283, 245 N.W. 157 (Wis. 1932)
• Decision Date: 09 November 1932
• Parties: HARTER v. DICKMAN.

209 Wis. 283

245 N.W. 157

HARTER

v.DICKMAN.

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from a judgment of the Circuit Court for Washington County; C. M. Davison, Circuit Judge.

Action by Gregory Harter against Russell Dickman. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Reversed and remanded for a new trial.

This action was commenced on February 3, 1931, to recover damages sustained by the plaintiff while riding in defendant's automobile as his guest. During the afternoon of February 24, 1930, the plaintiff and three others went for a ride with defendant. Prior to that day the plaintiff had ridden at least once with the defendant. The ride was undertaken simply for amusement and was uneventful. During the afternoon it was decided to go to Fond du Lac that evening to attend a show. While proceeding toward Fond du Lac on State Highway 55, which is of standard concrete construction they encountered a right-hand curve north of Wacousta, which was approximately six hundred feet in length, in the middle of which the concrete widened out to twenty feet. The curve was a ten degree curve, substantially level, and with the customary shoulders. The defendant permitted his right-hand wheels to get off the concrete onto the shoulder near the middle of the curve. The defendant drove partly on the concrete and partly on the shoulder for a distance of about fifty feet and then turned his car back on to the pavement. He evidently then turned his car to the right so as to follow the curve. The car began to sway back and forth, and, after proceeding a distance of about three hundred feet, tipped over, causing the plaintiff's injury. The car was being operated at a speed of about thirty-five to forty miles an hour. The defendant did not slow down or apply his brakes when he ran onto the shoulder, or after returning to the pavement. Some of the witnesses testified that the speed of the car was slightly increased while traveling partly on the shoulder. At the conclusion of the plaintiff's case the defendant moved for a nonsuit on the ground of insufficiency of the evidence and on the further ground that the plaintiff assumed such driving skill as the defendant possessed. This motion was denied. Motion for directed verdict was made at the conclusion of the testimony, which motion was also denied. The court submitted the case to the jury by special verdict, only one question of which need be recited.

“Question One. “Was the defendant, Russell Dickman, negligent in the operation of his automobile at and just previous to the time of the accident in respect to--

(A) As to control?

(B) In respect to the control at which he drove so as to increase the danger to the plaintiff beyond which the plaintiff ought to have reasonably expected in riding with the defendant?”

The jury answered subdivision A, “No,” and subdivision B, “Yes.” On the coming in of the verdict the plaintiff moved to change the answer of the jury to subdivision A, from “no” to “yes” and for judgment on the verdict as changed. The defendant moved (1) for judgment on the verdict as rendered, (2) to change the answer to subdivision B from “yes” to “no,” and (3) for a new trial because of the inconsistency of the verdict rendered. Plaintiff's motion was granted and judgment entered on the 26th day of June, 1931, from which the defendant appealed.

Stephens, Sletteland & Sutherland, of Madison, for appellant.

John A. Cannon, of West Bend, for respondent.

NELSON, J.

[1] The jury found that the defendant was not negligent in operating his automobile at and just previous to the time of the accident in respect to control, but found that the defendant was negligent at such time “in respect to the control at which he drove so as to increase the danger to the plaintiff beyond which the plaintiff ought to have reasonably expected in riding with the defendant.” That the verdict as rendered was inconsistent there can be no doubt.

The verdict as rendered could not support a judgment, and a new trial should have been granted unless the only inference which the evidence permitted was that the defendant failed to exercise ordinary care in the control of his car. Haas, Adm'r, v. Chicago & N. W. Ry. Co., 41 Wis. 44;Kearney, Adm'r v. Chicago, M. & St. P. Ry. Co., 47 Wis. 144, 2 N. W. 82;Schliesleder v. Milwaukee E. R. & L. Co., 147 Wis. 668, 134 N. W. 144;Berndl v. Director General of Railroads, 177 Wis. 210, 188 N. W. 81.

[2][3] It is claimed that the evidence permitted of no other inference than that the defendant failed to exercise ordinary care in the control of his car and that the court properly changed the answer to subdivision A from “no” to “yes,” and that the inconsistent verdict rendered was thereby made consistent. It is, however, contended by the defendant that there is evidence which supports the answer of the jury; that the evidence was sufficiently conflicting to justify the jury in answering subdivision A “no”; that the question of defendant's failure to exercise ordinary care in controlling his automobile at and just previous to the time of the accident clearly presented a jury question; and that therefore the court improperly changed the answer from “no” to “yes.”

We are in accord with the contentions of the defendant. Whether the defendant was negligent under the rules hereinafter stated in controlling his automobile, under all of the circumstances, was, we think, clearly a jury question and the trial court was not justified in changing the answer. The verdict of a jury should not be...