Higgins v. Stang

• Decision Date: 03 April 1928
• Citation: 218 N.W. 832,195 Wis. 498
• Parties: HIGGINS v. STANG ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 498

218 N.W. 832

HIGGINS

v.STANG ET AL.

Supreme Court of Wisconsin.

April 3, 1928.

Appeal from a judgment of the County Court of Waukesha County; D. W. Agnew, County Judge.

Action by James Higgins against J. F. Stang and others, copartners doing business as the Capital City Cartage Company, and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.--[By Editorial Staff.]

Action to recover damages sustained in a collision between an automobile in which plaintiff was riding in the rear seat as a guest and one of defendant's trucks, which was standing heading in an easterly direction south of the center line of the highway near Pewaukee. It is claimed by the defendants Stang and Stesske that the truck was standing almost entirely on the graveled shoulder on the south side of the road, while it is claimed by the plaintiff that it was standing entirely on the concrete south of the center of the road. The accident occurred about half past eleven in the afternoon of October 23, 1926. The automobile going east struck the rear end of the truck, and a passenger seated in the front seat to the right of the driver, Phillips, was instantly killed. The automobile was badly injured, and the truck was thrown forward and to the right, and was found almost across the limits of the highway. The jury found as follows:

“Question No. 1. Did the defendant Harry Phillips fail to exercise ordinary care in the operation and management of his automobile just before and at the time and place of the collision in question? Answer: No.

(2) If you answer question No. 1 ‘Yes,’ then you will answer this question; if you answer question No. 1 ‘No,’ then you need not answer this question: Was such failure to exercise ordinary care a proximate cause of the collision? Answer: ______.

(3) Did the defendant Harry Phillips at and immediately prior to the collision fail to exercise ordinary care in respect to the speed at which he operated his automobile? Answer: No.

(4) If you answer question No. 3 ‘Yes,’ then you will answer this question; if you answer question No. 3 ‘No,’ then you need not answer this question: Was such failure a proximate cause of the collision? Answer: ______.

(5) Did the defendant Harry Phillips fail to exercise ordinary care with respect to the lookout kept by him ahead of and about him as he approached the place of the collision? Answer: Yes.

(6) If you answer question No. 5 ‘Yes,’ then you will answer this question; if you answer question No. 5 ‘No,’ then you need not answer this question: Was such failure to keep a proper lookout a proximate cause of the collision? Answer: No.

(7) Did the truck drivers Stang and Stesske fail to exercise ordinary care in the use of the highway at the time and place in question? Answer: Yes.

(8) If you answer question No. 7 ‘Yes,’ you will answer this question; if you answer question No. 7 ‘No,’ then you need not answer this question: Was such failure to exercise ordinary care a proximate cause of the collision? Answer: Yes.

(9) Did the driver of the east-bound truck at the time and place in question park or leave such truck on the highway as to interfere with the free passage of vehicles over and along such highway? Answer: Yes.

(10) If you answer question No. 9 ‘Yes,’ then you will answer this question; if you answer No. 9 ‘No,’ then you need not answer this question: Was the act of the driver in parking or leaving said truck in such a manner a proximate cause of the collision? Answer: Yes.

(11) Did the owner of the east-bound truck fail to provide said truck with sufficient lights of such design, and so adjusted and operated as to render the use of the highway by other vehicles at the time and place of the collision safe for all users thereof? Answer: Yes.

(12) If you answer No. 11 ‘Yes,’ then you will answer this question; if you answer No. 11 ‘No,’ then you need not answer this question: Was such failure a proximate cause of the collision? Answer: Yes.

(13) Did any want of ordinary care on the part of the plaintiff, James Higgins, proximately contribute to produce his injury? Answer: No.

(14) If the court should be of the opinion that the plaintiff, James Higgins, is entitled to recover, what sum will fairly and reasonably compensate him for the damages sustained by him, first, for professional care and attention. Answer: $787.50.

Second, for personal injuries? Answer: $14,000.”

Upon motion duly made, the court changed the answer to question No. 1 from ‘No’ to ‘Yes,’ and found in answer to question No. 2 that Phillips' failure to exercise ordinary care in the operation and management of his automobile was the proximate cause of the injury. The court also changed the answer to question No. 6 from ‘No’ to ‘Yes.’ Upon a verdict so amended, judgment was entered in favor of the plaintiff for the damages found by the jury, from which judgment the defendants appealed.

McGovern, Lyons, Curtis, Devos & Reiss and Rodger M. Trump, all of Milwaukee, for appellants.

Hanley & Hanley, of Milwaukee (Henry Lockney, of Waukesha, of counsel), for respondent.

VINJE, C. J.

The case is an important one, and necessarily a great deal of evidence was taken. It will not, however, become necessary to review much of the testimony or to discuss any but procedural errors. In our opinion, we conclude that the case must be reversed, because it shows either perversity or such a lack of understanding on the part of the jury as to make it certain the defendants have not had a fair trial....