John v. Pierce

• Decision Date: 23 June 1920
• Citation: 172 Wis. 44,178 N.W. 297
• Parties: JOHN v. PIERCE ET AL.
• Court: Wisconsin Supreme Court

172 Wis. 44

178 N.W. 297

JOHN

v.PIERCE ET AL.

Supreme Court of Wisconsin.

June 23, 1920.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by August F. John against Frederick L. Pierce and William B. Johnson, with cross-complaint by Pierce against Johnson. Judgment for plaintiff, after dismissal of cross-complaint, and defendant Pierce appeals. Reversed as against plaintiff, and affirmed as to defendant Johnson.

Siebecker, J., dissenting.

The plaintiff was a passenger in the front seat of an automobile driven by defendant William B. Johnson on a highway in Waukesha county August 18, 1918. They were proceeding westerly at about the center of the highway at from 15 to 18 miles per hour. On approaching a bend in the highway, the driver, Johnson, saw coming around from the west at a speed at such time of between 25 and 30 miles per hour an automobile belonging to the defendant Frederick L. Pierce and being driven by Mr. Pierce's daughter. The traveled portion of the highway at this point was about 20 feet in width. In front, and on Johnson's left-hand side, was a level open space on the side of the road, made by an old gravel pit. To Johnson's right, and outside the traveled way, were some trees and some clear space. Under Johnson's own testimony, the moment he saw the automobile approaching at a high speed he (Johnson) immediately turned his automobile quite sharply to the left, and did not again look to see where the Pierce car was until just at the moment of the collision between the two. This collision occurred just a little outside of the traveled portion of the highway in the gravel pit. The cars met practically head on, and several of the respective occupants were injured.

Plaintiff commenced this action, alleging various grounds of negligence on the part of the defendant Pierce, and made Johnson also a party defendant, but alleging no ground of negligence as against him, stating that he was made defendant that he (Johnson) might be bound by whatever judgment was rendered in the action, on the ground that the defendant Pierce claimed that the collision was proximately caused by the carelessness and negligence of the defendant Johnson. Plaintiff prayed for judgment against the defendant Pierce, and in the event only that the defendant Pierce succeeds in such claims, and they are found to be true, that then only, and in that alternative, he (plaintiff) may have judgment against Johnson.

To this complaint defendant Johnson demurred. The defendant Pierce then moved the court for permission to be allowed to file a cross-complaint against the defendant Johnson alleging that the injuries to plaintiff were caused by the negligence of Johnson, and that by reason thereof there was a right on the part of defendant Pierce to be indemnified by said Johnson for any loss or damage which he (Pierce) might sustain by reason of plaintiff's claim. The demurrer of defendant Johnson to the complaint was sustained. An order made Johnson a party, and amended summons and complaint were served upon him. The defendant Johnson then demurred to the complaint again, and demurred separately to the cross-complaint. Upon hearing, the demurrer to the amended complaint was again sustained, and that to the cross-complaint overruled. The defendant Johnson then answered the cross-complaint, and the cause proceeded to trial upon such pleadings.

Near the close of the trial the plaintiff, with the understanding that defendant Pierce would make no objection to such action, asked to amend the complaint by alleging on information and belief that the defendant Johnson carelessly and negligently operated the automobile in which plaintiff was riding, by failing to keep a proper lookout, to be on the proper side of the road, and by failing to keep his car under proper control, and that if the jury should find negligence in such particulars as a proximate cause of plaintiff's injuries that judgment might go in plaintiff's favor against said defendant, and he then submitted the witnesses that had been called on his part for further cross-examination by defendant Johnson's attorneys. The ruling on such motion was withheld until the close of the testimony. Defendant Johnson then moved for a directed verdict in his favor for a dismissal. The court denied the motion to amend the complaint, but at first ruled that he would not grant the motion of defendant Johnson until after the jury returned the special verdict, lest the jury might draw some improper inference or conclusion from the granting of such motion. However, while the jury were considering the special verdict, the court called them in and then directed them to find a verdict in favor of defendant Johnson, but at the same time cautioning them that they were to draw no inference whatsoever from such action on his part in their consideration of the special verdict.

By special verdict the jury found as follows: First, that there was a failure to exercise ordinary care in the operation of defendant Pierce's automobile by his daughter as it approached and collided with the Johnson automobile; second, such want of ordinary care was a proximate cause of plaintiff's injury; third, that there was no want of ordinary care on the part of defendant Johnson proximately contributing to plaintiff's injuries; fourth, plaintiff's damages were assessed at the sum of $5,200.

After respective motions by the parties, the court granted judgment in favor of the plaintiff for the amount of the verdict, and from the judgment entered in accordance therewith defendant Pierce has appealed.

Van Dyke, Shaw, Muskat & Van Dyke and Ralph M. Hoyt, all of Milwaukee, for appellant.

Glicksman, Gold & Corrigan, of Milwaukee, for respondent John.

Lines, Spooner & Quarles, of Milwaukee, for respondent Johnson.

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

[1] It is undisputed in this case that Mr. Johnson, the driver of the car in which plaintiff was riding at the time of the collision, turned to his left as he saw the Pierce car approaching. In so doing he violated the law of the road as embodied in the statutes (sections 1636--49 and 1636--49b, Stats.), in failing to turn to the right in approaching and passing. Such a violation of the penal statutory provisions regulating the use of highways was of itself negligence. Steinkrause v. Echstein, 170 Wis. 487, 175 N. W. 988;Yahnke v. Lange, 168 Wis. 512, 516, 170 N. W. 722, and cases cited therein. Under the evidence in this case, showing that the collision occurred immediately upon such negligence by Johnson, we are convinced that the finding of the jury that there was no want of ordinary care on Johnson's part that proximately contributed to produce plaintiff's injury was very probably arrived at by them on account of errors occurring on the trial, and which we must deem prejudicial, and requiring a reversal of the judgment.

[2] Immediately after the collision, and as some of the injured occupants of the respective automobiles were being taken away from the immediate point of collision, certain conversations were had with Mr. Johnson, which, under the testimony as presented by defendant Pierce concerning them, would warrant an inference by the jury that the collision occurred by reason of Johnson's negligence, rather than that of any other person. Conversationsof a similar nature were...