Hughes v. Rentschler Floral Co.

• Decision Date: 03 May 1927
• Citation: 193 Wis. 49,213 N.W. 625
• Parties: HUGHES v. RENTSCHLER FLORAL CO.
• Court: Wisconsin Supreme Court

193 Wis. 49

213 N.W. 625

HUGHES

v.RENTSCHLER FLORAL CO.

Supreme Court of Wisconsin.

May 3, 1927.

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

Action by J. E. Hughes, executor of the estate of Elizabeth Hughes, deceased, against the Rentschler Floral Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, with directions.--[By Editorial Staff.]

This is an appeal from a judgment dismissing the plaintiff's complaint, with costs. The action was brought by the executor of the estate of Elizabeth Hughes, deceased, to recover damages by reason of accidental injuries to Miss Hughes, resulting in her death. There was a trial before a jury, and at the conclusion of the evidence the court granted the defendant's motion for a directed verdict in favor of the defendant, and dismissed the complaint. The plaintiff appealed on the ground that the evidence presented a jury question.Schubring, Ryan, Clarke & Petersen, of Madison, for appellant.

Sanborn, Blake & Aberg, of Madison (Ernest H. Pett, of Madison, of counsel), for respondent.

CROWNHART, J.

[1] The essential facts in the case are simple, and are practically undisputed. The deceased was a young woman, residing in the city of Madison. While walking along the west side of North Hamilton street, in the city of Madison, at about 5 p. m. on February 17, 1926, she was struck by the respondent's Dodge truck. The respondent's truck had been driven by a young man by the name of Skelly, to a point opposite No. 119 North Hamilton street, where he was to make delivery of a package of flowers. Skelly testified that he drove the truck opposite No. 119 North Hamilton street, cramped the right wheel against the curb, and put on the emergency brake. He thereupon attempted to deliver his package at No. 119, and while waiting there for an answer to the bell he noticed a woman attempting to get a Chevrolet car out from behind his truck. He did not find his party at No. 119, and went to No. 121 North Hamilton street, and went upstairs to make delivery. When he returned, some four or five minutes later, he discovered that his truck had moved down North Hamilton street, had crossed East Dayton street, and was just bumping into a building on the opposite side of East Dayton street. North Hamilton street, in the block in question, has a grade of 7 per cent. down to East Dayton street.

A high school girl, by the name of Alice Brattrud, was going down North Hamilton street on the right-hand side, and noticed the woman who was trying to get her Chevrolet out onto the street from behind the truck. She testified that the Chevrolet touched the truck, but did not move the truck. After the woman got out with her Chevrolet car, Miss Brattrud crossed the street directly in front of the truck, and at that time the truck was not in motion. After she had crossed the street, she noticed the truck in motion, going down North Hamilton street with increasing speed, and saw the accident. The driver of the truck testified that the brakes on the truck were in good order, and that they would hold the truck. An experienced mechanic testified that a hard bump on the hind end of a Dodge truck might release the brake. He examined the car after the accident and found no evidence of a blow in the rear of the automobile. He testified:

“Q. If you found, on examining the automobile, no blow in the rear part of the automobile, and the brakes were nevertheless released, it would be your conclusion as an expert that the brakes had not been set; isn't that right? A. Yes, sir.”

Skelly testified that he went back that evening and looked at the tracks made by his truck, and found that the tracks started “right from where I left it. * * * It ran along the curb a little ways; that is all we could see. * * * Those tracks...