Haswell v. Reuter

• Decision Date: 06 April 1920
• Citation: 171 Wis. 228,177 N.W. 8
• Parties: HASWELL v. REUTER.
• Court: Wisconsin Supreme Court

171 Wis. 228

177 N.W. 8

HASWELL

v.REUTER.

Supreme Court of Wisconsin.

April 6, 1920.

Appeal from Superior Court, Dane County; August C. Hoppmann, Judge.

Action by G. W. Haswell against Jackson Reuter. Judgment of dismissal, and plaintiff appeals. Affirmed.

Action to recover damages to plaintiff's automobile sustained in a collision with defendant's truck at the intersection of Regent and South Park streets in the city of Madison, January 26, 1919. Plaintiff charges ordinary negligence in one count and gross negligence in another count of the complaint. The defendant answered and counterclaimed for damages to his truck, alleging separately both ordinary and gross negligence on the part of the plaintiff. At the close of the evidence the court granted defendant's motion to dismiss plaintiff's cause of action founded upon gross negligence, and submitted the issues raised by plaintiff's cause of action, charging ordinary negligence and the causes of action alleged in the counterclaim to the jury. Sanders was defendant's driver. The jury returned the following verdict:

“(1) Was Sanders guilty of any want of ordinary care with reference to the speed at which he ran the defendant's truck at and before the time of the collision? Answer: No.

(2) If you answer question No. 1 Yes, then answer this question: Was such want of ordinary care the proximate cause of the collision? Answer: _____.

(3) Was plaintiff guilty of any want of ordinary care that contributed to the damage to his car and the injuries to himself? Answer: Yes.

(4) What sum will measure the damage done to the plaintiff's automobile as a result of the collision? Answer: $590.11 (by the court).

(5) What sum will measure the damages sustained by the plaintiff as personal injuries which he received as a result of the collision? Answer: None.

(6) Was plaintiff guilty of gross negligence with reference to the speed at which he ran his automobile at and just before the time of the collision? Answer: No.

(7) If you answer question 6 No, then answer these questions:

(a) Was the plaintiff guilty of any want of ordinary care with reference to the speed at which he ran his automobile at and before the time of the collision? Answer: Yes (by the court).

(b) Was such want of ordinary care with reference to the speed at which plaintiff ran his automobile, at and before the time of the collision, the proximate cause of defendant's damages? Answer: No.

(c) Was plaintiff guilty of any want of ordinary care with reference to the manner in which he ran his automobile at and before the time of the collision? Answer: No.”

“(e) If you answer question (c) Yes, then answer this question: Was such want of ordinary care with reference to the manner in which plaintiff ran his automobile at and before the time of the collision the proximate cause of defendant's damages? Answer: _____.

(f) Was Sanders guilty of any want of ordinary care that contributed to the damage to the defendant's truck? Answer: Yes.

(8) What sum will measure the damage done to the defendant's truck as a result of the collision? Answer: $29.02 (by the court).”

The court changed the answer to question 7b from No to Yes, and upon the verdict so amended entered judgment, dismissing plaintiff's complaint upon the merits, and likewise defendant's counterclaim with costs to the defendant. Plaintiff appealed.

William R. Curkeet and Curkeet & Lewis, all of Madison, for appellant.

Olin, Butler, Stebbins & Stroud, of Madison, for respondent.

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

[1][2][3] Did the court err in dismissing plaintiff's second cause of action based upon the alleged gross negligence of Sanders? It is true that the trial court gave as a reason for dismissing it that no ratification of Sanders' conduct was shown. While it is not essential in order to render a defendant liable that there should be a ratification on his part of gross negligence committed by his servant while in the course of his employment (Craker v. Chi. & N. W. Ry. Co., 36 Wis. 657, 668, 17 Am. Rep. 504;Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922, 58 Am. Rep. 875;Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304, 80 Am. St. Rep. 47; Johnson v. Chi., St. P., M. & O. Ry. Co., 130 Wis. 492, 110 N. W. 424), still it is immaterial what ground the trial court assigned as the reason for his ruling if it be in fact correct (Falkenstern v. Greenfield, 145 Wis. 232, 130 N. W. 61;Jeffers v. Green Bay & Western Ry. Co., 148 Wis. 315, 134 N. W. 900;Garage Equipment Mfg. Co. v. Danielson, 156 Wis. 90, 144 N. W. 284). So the question remains, Was there any gross negligence on the part of Sanders? The ground is nearly level at the intersection of the two streets. Regent is paved with asphalt, and is in fine condition. South Park has a macadam pavement that is somewhat rough. The evidence shows that Sanders drove his truck, being a Ford car, with a box for carrying milk, altogether weighing about 2,200 pounds, at a rate not exceeding from 10 to 15 miles per hour. Indeed, the preponderance of evidence is that his speed was less. The jury acquitted him of ordinary negligence as to speed, and properly so under the evidence. The gist of the allegations of gross negligence in the complaint is excessive, wanton, and reckless speed on the part of Sanders. Since there is a lack of evidence to show ordinary negligence in this respect, it follows as a matter of course that there is a failure to show gross negligence.

The jury found plaintiff guilty of contributory negligence. He was driving east on Regent street, and defendant was driving north on South Park street; the latter, therefore, had the right of way under section 1636--49. There was no obstruction preventing either...