Holub v. Cootware

• Decision Date: 04 March 1919
• Citation: 170 N.W. 939,169 Wis. 176
• Parties: HOLUB v. COOTWARE ET AL.
• Court: Wisconsin Supreme Court

169 Wis. 176

170 N.W. 939

HOLUB

v.COOTWARE ET AL.

Supreme Court of Wisconsin.

March 4, 1919.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by James Holub against Peter Cootware and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action brought to recover damages for personal injuries resulting from an automobile accident. On October 12, 1916, plaintiff procured a load of kindling wood to be delivered in front of his house in the city of Milwaukee. The wagon in which the wood was delivered backed up to the curb in front of plaintiff's house, and the wood was dumped out of the rear end. It fell on both sides of the curb; some being between the curb and the sidewalk, and some out in the street from the curb. It was late in the evening, and plaintiff immediately started to carry it to his basement in a basket. While he was in the street putting wood in his basket, in a stooping posture, he was struck by defendant's automobile and sustained certain injuries.

Action was brought against the defendant Peter Cootware in the civil court of Milwaukee, resulting in plaintiff's recovery. The complaint in that action prayed for a recovery of $2,000. The defendant then appealed to the circuit court, where the judgment of the civil court was reversed, and a new trial in the circuit court was ordered. Thereupon plaintiff commenced this action against Peter Cootware and the Automobile Liability Company, in the circuit court, praying for a recovery of $5,000. A special verdict was returned, in which the defendant Cootware was found guilty of negligence which constituted the proximate cause of the accident. The plaintiff was also found guilty of contributory negligence which proximately contributed to the accident. Upon this verdict the court granted judgment in favor of the defendants. From the judgment so rendered plaintiff appealed.Raymond J. Cannon, of Milwaukee (Glicksman, Gold & Corrigan, of Milwaukee, of counsel), for appellant.

J. Elmer Lehr, of Milwaukee, for respondents.

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

[1] The notice of appeal in this case states that plaintiff appeals from the order made and entered--

“in this action by said court on the 8th day of December, 1917, by which order the judgment of the civil court rendered in favor of the plaintiff and against the defendants in this action was reversed, and ordering that the action be tried in this court by a jury, and also from the whole of the judgment made and entered in this action by said court on the 20th day of April, 1918.”

We are asked to review the order of the circuit court, by which the judgment of the civil court in the original action of Holub v. Cootware was reversed. Whether, upon an appeal from the judgment of the circuit court of Milwaukee county, this court will review an order of that court reversing the judgment of the civil court in the same action, is a question that has not been determined. A somewhat similar question was, however, considered in Bonnell v. Ch., St. Paul, etc., Ry. Co., 158 Wis. 153, 147 N. W. 1046, but whether what was there said is decisive of this question we do not decide. The question is not here presented, for the reason that, after the judgment rendered in the civil court in Holub v. Cootware was reversed by the circuit court, this new and independent action was commenced in the circuit court. We are really at a loss to understand the position of counsel for appellant in this matter. He seems to assume that this action is the same action that was originally started in the civil court, and it is not altogether clear that it was not so regarded by the circuit court, as a plea in abatement filed by the defendant Cootware, in which the pendency of the former action was pleaded, was overruled by that court. However, there can be no doubt that this is a new, separate, and independent action, brought in another court, against different parties, and asking for the recovery of an amount over which the civil court has no jurisdiction. A mere statementof this situation is sufficient to indicate that we cannot on this appeal review an order of the circuit court reversing the judgment rendered in the civil court in the original action brought in that court.

[2] The jury found that plaintiff was guilty of contributory negligence which proximately contributed to the accident. Appellant insists that this finding of the jury is not supported by the evidence. An ordinance of the city of Milwaukee, introduced in evidence upon the trial, provides that--

“Sufficient lights shall be displayed and maintained during the whole...