Johnson v. Firemen's Fund Indem. Co.
| Decision Date | 03 July 1953 |
| Citation | 59 N.W.2d 660,264 Wis. 358 |
| Parties | JOHNSON, v. FIREMEN'S FUND INDEMNITY CO. |
| Court | Wisconsin Supreme Court |
Action commenced February 11, 1952 by Walter E. Johnson to recover damage to his automobile sustained in a collision between his car and that of Mrs. Veda Stone.
The collision occurred on November 5, 1951 at the intersection of Lake Street and 3rd Avenue in the city of Eau Claire. Plaintiff was driving east on Lake Street and Mrs. Stone was proceeding north on 3rd Avenue. The jury found Mrs. Stone guilty of causal negligence with respect to lookout, control and speed, and attributed 60% of the negligence to her. They found plaintiff guilty of causal negligence with respect to control, speed, yielding the right of way and attributed 40% to him. They exonerated him of negligence with respect to lookout, found him negligent as to keeping his windshield and windows clear, but that the latter was not a cause of the collision.
Upon motions after verdict the court changed the answers to the question of the verdict inquiring as to comparison of negligence, holding that the negligence of the plaintiff was at least equal to that of Mrs. Stone, and entered judgment dismissing the complaint. Plaintiff appeals.
Frank L. Morrow, Eau Claire, for appellant.
Wilcox & Sullivan, Eau Claire, for respondent.
Although after verdict plaintiff moved in the alternative that the court change answers to the questions which inquired as to his conduct, he did upon the oral argument made here in effect abandon that contention and expressed his willingness to accept judgment upon the verdict as returned. That expression and an examination of the record satisfies us that there is but one issue for determination: the question whether the trial court erred in changing the answers to the questions which inquired as to comparison of negligence. The defendant finds no fault with the verdict except as to the finding respecting comparison of negligence.
It is quite apparent from a reading of the judge's memorandum opinion that the jury's finding that plaintiff was negligent with respect to yielding the right of way was an impelling circumstance affecting his conclusion. The defendant also relies heavily upon that finding. It should not have been considered.
Because of the jury's finding that Mrs. Stone was guilty of causal negligence with respect to speed the issue of right of way was taken out of the case. Sec. 85.18(1), Stats. provides that There is testimony which warrants the conclusion that the two cars approached the intersection at approximately the same time. Although there is no evidence that Mrs. Stone was driving at a rate...
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