Kichefsky v. Wiatrzykowski

• Decision Date: 09 November 1926
• Citation: 191 Wis. 319,210 N.W. 679
• Parties: KICHEFSKY v. WIATRZYKOWSKI ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 319

210 N.W. 679

KICHEFSKY

v.WIATRZYKOWSKI ET AL.

Supreme Court of Wisconsin.

Nov. 9, 1926.

Appeal from Circuit Court, Milwaukee County; Otto C. Breidenbach, Judge.

Action by August Kichefsky against John Wiatrzykowski and another. Judgment for plaintiff, and defendant Wiatrzykowski appeals. Reversed.--[By Editorial Staff.]

This is an appeal from a judgment in favor of the plaintiff and against both defendants entered on a jury verdict. The action was begun by the plaintiff for personal injuries received by reason of being struck by a Ford automobile truck driven by the defendant Joseph Wiatrzykowski.Schoetz, Williams & Gandrey, of Milwaukee (Hoyt, Bender, McIntyre & Hoyt, of Milwaukee, of counsel), for appellant.

George A. Affeldt, of Milwaukee, for respondent.

CROWNHART, J.

The accident happened at the junction of Windlake and Sixth avenues, in the city of Milwaukee. The defendant Joseph Wiatrzykowski, driving a Ford truck northwesterly on Windlake avenue, turned to the north on Sixth avenue. The plaintiff, traveling in a southwesterly direction on the westerly side of Windlake avenue, started across Sixth avenue, and as he reached a point near the easterly street car track he was struck by the automobile and badly injured. Plaintiff testified that as he stepped down from the curb he took two or three steps and looked to the southwest and saw defendant's automobile coming a block away. He continued across the street, looking to the north, and as he reached the point near the street car track, he again looked to the southwest, when he discovered the defendant's car only two feet away, and too late to escape.

The case was submitted to a jury on a special verdict, and the jury found that the defendant Joseph Wiatrzykowski was driving his automobile at an excessive rate of speed just prior to the collision, which was a proximate cause of plaintiff's injury, that the defendant Joseph Wiatrzykowski failed to keep a proper lookout ahead of him just before the collision, that the defendant Joseph Wiatrzykowski did not fail to use ordinary care in the management and operation of his automobile just prior to the collision, and that the plaintiff was not guilty of any want of ordinary care that proximately contributed to his injury. Damages were assessed at $3,500.

The defendants contend that the evidence shows as a matter of law that the defendant Joseph Wiatrzykowski was not acting as the agent of the defendant John Wiatrzykowski, and that at least the evidence presented an issue of fact for the jury as to such agency, that the court erred in instructing the jury, and that the evidence shows, as a matter of law, that the plaintiff was guilty of contributory negligence which proximately caused his injuries.

It appears without controversy that Joseph Wiatrzykowski was 17 years of age, working for his father in his retail meat market and grocery, and that he made deliveries with his father's Ford truck; that he received from his father his board, clothes, and spending money for such services, but no salary. On the evening in question Joseph desired to buy a hat, and his father gave him money for that purpose. The father knew that Joseph was going out to purchase the hat, and that he was going to take the truck for that purpose, with the father's express permission. The father testified:

“He told me he needed a new hat. I says, ‘You can have it.’ I then gave him money, and I says, ‘Go and get it.’ I did not tell him where to go and get it. I didn't tell him where he should go to get a hat. I gave him the money and told him to get the hat. He asked whether he could take the automobile. The automobile referred to was the Ford truck. The Ford truck, at the time he asked me whether he could use it to...