Kellner v. Christiansen

• Decision Date: 27 May 1919
• Parties: KELLNER v. CHRISTIANSEN.
• Court: Wisconsin Supreme Court

169 Wis. 390

172 N.W. 796

KELLNER

v.CHRISTIANSEN.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Circuit Court, Milwaukee County; E. V. Werner, Judge.

Action by Mathias Kellner against J. Christiansen. Verdict for plaintiff upon a special verdict, and on plaintiff's election to make a remittitur, instead of going to a new trial, judgment was entered in his favor, and defendant appeals. Affirmed.

This action was brought by Mathias Kellner to recover damages for personal injuries which he claims were inflicted on him by the negligence of the defendant. On August 15, 1916, Mathias Kellner was struck by an automobile owned and driven by the defendant. The accident took place between 7:50 and 8:10 p. m. on a public highway near Somers, Racine county. Kellner was walking on the road, when the automobile overtook him from the rear. The plaintiff claims that defendant was operating his car, at and prior to the time of the accident, at a high rate of speed; that he failed to reduce his rate of speed while within 150 feet of and while passing a vehicle going in the opposite direction; that, although it was after sunset, defendant failed to display on the front of his machine a lamp giving a reasonably bright light; that because of the rate of speed at which he was operating his car it was impossible for him to stop it within a reasonable distance. Plaintiff alleges that the automobile struck him on his right leg near the knee; that defendant, shortly after the accident, took plaintiff to his home in defendant's machine, but illtreated him in the manner in which he lifted him into his automobile. Kellner claims that he has been permanently lamed by the accident, that he has suffered great pain and been put to great expense, and that his earning powers have been greatly diminished. The defendant denies negligence, and alleges contributory negligence on the part of the plaintiff.

By a special verdict the jury found that Christiansen was operating his car above a reasonable rate of speed at the time of the accident; that he failed to exercise ordinary care; that such want of ordinary care on the part of the defendant was the proximate cause of plaintiff's injuries; that Kellner was not guilty of want of ordinary care that proximately contributed to his injury. The jury assessed damages at the sum of $3,500. These issues were submitted as follows:

Question 1: Did the defendant, Christiansen, at the time the plaintiff, Kellner, was injured, operate his automobile at a rate of speed greater than was reasonable and proper, having regard to the width, traffic, and use of the highways?

Answer: Yes.

Question 2: If you answer question No. 1 “Yes,” then answer this question: With reference to the rate of speed at which the defendant Christiansen was running his automobile, and just before the time the plaintiff, Kellner, was injured, did the defendant, Christiansen, fail to exercise such care as the great mass of mankind ordinarily exercise when acting under the same or similar circumstances?

Answer: Yes.

Question 3: If you answer question No. 2 “Yes,” then answer this question: Was the injury to plaintiff, Kellner, under such circumstances, the natural and probable result of such course of conduct on the part of the defendant, Christiansen?

Answer: Yes.

Question 4: If you answer question No. 3 “Yes,” then answer this question: Ought the defendant, Christiansen, under such circumstances, as a person of ordinary intelligence and prudence, to have reasonably foreseen that injury to another person upon the highway may probably follow from such person's conduct?

Answer: Yes.

Question 5: Did any want of ordinary care on the part of the plaintiff, Mathias Kellner, proximately contribute to his injury?

Answer: No.

Question 6 covered the subject of damages.

The court found the sum awarded by the jury ($3,500) excessive, and reduced it to the sum of $2,500. An order was entered, granting a new trial of the action unless plaintiff elected within 20 days to remit the sum of $1,000, and take judgment for the sum of $2,500 and costs. The plaintiff elected to remit $1,000, whereupon judgment was entered in his favor in the sum of $2,500 damages and $161.93 costs.

This is an appeal from such judgment.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellant.

Nohl & Nohl, of Milwaukee, for respondent.

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

[1] It is contended that the court erred in permitting defendant to answer, over objection, the following questions: “Did you make any written report of the accident?” and “To whom did you hand this report?” To the first question the defendant answered: “I notified the insurance company; that is the only one.” Upon objection to the second of the foregoing questions, plaintiff's counsel addressed this inquiry to defendant's counsel: “Will you produce the report?” which was refused. The court then had the jury retire and heard counsel; when the jury returned, the report was exhibited to the witness. It is obvious from what took place that plaintiff's counsel wrongfully assumed that they were entitled to have the report exhibited to them under the proceedings up to this point of the trial. Nothing appeared to make this report a proper subject of inquiry in the case. The claim that plaintiff had a legal right to have the report produced for inspection, under the circumstances disclosed, is not supported by the established rules of evidence and procedure. Nothing had developed in the trial making the report competent and material evidence in the case. See Lehan v. C. & N. W. Ry. Co., 172 N. W. 787, and Bell v. M. E. Ry. & L. Co., 172 N. W. 791, decided herewith.

[2] Another exception is urged to these inquiries of the defendants on the ground that they necessarily required and were intended to disclose to...