Isgro v. Plankinton Packing Co.
| Decision Date | 07 February 1922 |
| Citation | 176 Wis. 507,186 N.W. 606 |
| Parties | ISGRO v. PLANKINTON PACKING CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.
Action by Peter Isgro against the Plankinton Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Action for personal injuries. This is an appeal by the defendant, Plankinton Packing Company, from a judgment of the circuit court of Milwaukee county, Hon. John J. Gregory, Judge, for damages for personal injuries, as a result of being struck by the defendant's automobile truck.
Plaintiff, an Italian laborer, working for the Milwaukee Electric Railway & Light Company, on the 25th day of February, 1919, while wheeling a wheelbarrow loaded with crushed stone on Lisbon avenue, in the city of Milwaukee, was struck by the defendant's automobile, as the result whereof he sustained serious injuries to his right lower limb.
The evidence shows that Lisbon avenue, a public street in the city of Milwaukee, running northwesterly and southeasterly, is intersected by double tracks of the Chicago, Milwaukee & St. Paul Railway Company, and that it has located thereon, at the usual place for street car tracks, two tracks of the Milwaukee Electric Railway & Light Company. On the date of the injury, the pavement between the railroad tracks and the street car tracks had been torn up, and the employés of the street car company were engaged in relaying such pavement. To the south of a line extended across said St. Paul tracks, representing the continuation of the curb on the north side of the avenue, a space of about 10 feet in width was planked, and this planked space afforded the only passageway for vehicles traveling towards the west on said Lisbon avenue. On the north side of said avenue, and close to the curb, and a distance of between 30 and 40 feet east of the easterly railroad track, there was a pile of crushed stone, extending out from the curb into the avenue a distance of about 8 feet. Plaintiff, on the day in question, after having loaded his barrow with crushed stone, looked toward the east, and there discovered the defendant's truck coming westerly, a distance away of about 250 to 300 feet. Thereupon he took his wheelbarrow and wheeled the same, loaded as aforesaid, towards the west until he arrived at a point about one foot east of the easterly rail of the easterly track of said railroad company, and there set his wheelbarrow down. He had then arrived at the planked crossing above described. He then discovered the defendant's truck a distance of between 80 and 120 feet towards the east from where he then stood, and, apparently concluding that he had ample time in which to cross over said planked crossing, he continued with his wheelbarrow towards the west, until he arrived at the easterly rail of the westerly track of the railroad company, at which point he claims to have been struck upon his right arm by the south front fender of the truck, as the result whereof he was turned about, and when the truck had proceeded so that the left rear wheel was about opposite from where he was then standing, such wheel came in contact with his right lower limb, causing a wound, which is described by Dr. Lemon as follows:
“He had a dissecting wound of the skin on the back of the foot which extended from the inner to the outer side of the foot in a transverse line, dissecting down the skin and the soft parts immediately under the skin, dissecting them away from the bone and from the large ligament or tendon, which is found on the back of the foot, namely, the tendon Achilles, * * * as though the cap of the skin on the back of the foot had turned or stripped right down; * * * the tissues were not materially injured at all other than by being dissected down.”
The plaintiff, testifying through the aid of an interpreter, describes the happening of the injury as follows:
“The truck hit me and turned me around, and then the wheel passed over my leg and knocked me down.”
The evidence also shows that when the plaintiff was picked up after the injury he was lying west of the westerly track of the railroad company. The evidence does not disclose that any other witness excepting plaintiff saw just how the accident happened.
Dr. Lemon also testified, as an expert, that the injury was the result of a force applied anatomically from above downward, and could have been inflicted either while he was standing up or while he was lying down. Peters, defendant's employé, and the driver of the truck, testified that he sat on the left-hand side on the seat, the truck having a left-hand drive, and that a helper named Devine sat on the same seat, to the right of him. Both the driver and Devine testified that they first saw the plaintiff when he was about 50 or 60 feet away, while he was crossing with his wheelbarrow from the north to the south of the planking, and that the driver then called out to him to get out of the way, and that the plaintiff looked at him and kept going towards the south, looking at the truck as he was doing so; that when the plaintiff had arrived with his barrow at a point in close proximity of the northerly rail of the northerly street car track, he put down his barrow and stood between the handles thereof, looking toward the east, and that when the front wheels of the truck passed plaintiff the truck was about 1 foot distant from him, and that after the front wheels had passed, both he and Devine looked towards the rear, and, as the rear left wheel came opposite to where the plaintiff then stood, they saw him falling over “like a statue, and did not move.” Both Peters and Devine testified that plaintiff fell with his head towards the west and his feet towards the east, and that he was picked up immediately west of the westerly track of the railroad company, and that no portion of the automobile at any time came in contact with the plaintiff, and that the rear left wheel did not pass over his foot.
Roy Muehl, defendant's witness, testified as an expert that the truck in question was a three-ton truck, standard make; that it has a first, second, third, and fourth speed, and a reverse; that the maximum speed in No. 1 is 2 miles per hour, in No. 2, 4 miles, in No. 3, 8.1, and in No. 4, 12 miles, and in reverse, 2 miles; that over the front wheels there were fenders which projected forward to a distance of about 16 inches back of the extreme front end of the wheels, and that the front fenders project toward and over the outer side of the wheels a distance of about 2 inches; that the height of the front part of the front fenders is 3 feet 5 inches above the base of the wheel; the hubs of the front wheels extend sideways beyond the fender 5 inches; in other words, the hub is 5 inches over all, and the end of the hub cap extends 7 inches beyond the tread of the wheel; that the width of the truck over all is 7 feet 6 inches from hub cap to hub cap, and the truck is 19 feet 9 inches long. It also appears that the truck had solid tires, and that there extended outwardly beyond such tires a steel rim.
The plaintiff testified that after he was precipitated to the ground he was lying with his head toward the south and his feet towards the north.
The jury in the special verdict submitted found: (1) That the driver of the defendant's truck failed to exercise ordinary care in the management and control thereof at and immediately prior to the time plaintiff was injured; (2) that such failure was the proximate cause of the injury; (3) that the plaintiff was not guilty of a want of ordinary care which proximately contributed to produce the injury.
McGovern, Hannan, Devos & Reiss, of Milwaukee, for appellant.
Wm. L. Tibbs, of Milwaukee, for respondent.
DOERFLER, J. (after stating the facts as above).
[1] 1. Was the defendant guilty of negligence which proximately contributed to the injury? In considering this question, we must determine whether there was any credible evidence in the case, supporting the finding of the jury on that subject. If there was such credible evidence which to a reasonable mind can support any inference in favor of a party, the question is for the jury. Smith v. Reed, 141 Wis. 486, 124 N. W. 489. It has been held in Behling v. Wis. Bridge & Iron Co., 158 Wis. 584, 591, 149 N. W. 484, 487, that:
“Failure in any case, and especially where to disturb the verdict rests in sound discretion, leaves, in general, very little opportunity for...
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...careful laborer, similarly occupied and situated, would exercise under the same or similar circumstances.' Isgro v. Plankinton Packing Co., 176 Wis. 507, 515, 186 N.W. 606. Whether he has exercised that degree of care is for the jury's determination. Hodgson v. Wisconsin Gas & E. Co., 188 W......
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