Kielich v. Whittaker

• Citation: 198 N.W. 270,183 Wis. 470
• Parties: KIELICH ET AL. v. WHITTAKER.
• Decision Date: 08 April 1924
• Court: United States State Supreme Court of Wisconsin

183 Wis. 470

198 N.W. 270

KIELICH ET AL.

v.WHITTAKER.

Supreme Court of Wisconsin.

April 8, 1924.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Separate actions by Clara Kielich and John Kielich against George Whittaker, combined and tried together. Judgment for defendant, and plaintiffs appeal. Reversed, and cause remanded for a new trial.

Personal injury. Action for damages. This is an appeal from a judgment in favor of the defendant, dismissing the complaints with costs. Two actions were begun, one by Clara Kielich and one by her husband, for damages on account of injuries received by Clara Kielich by reason of an auto truck of defendant colliding with her while she was crossing a public street. By stipulation both actions were combined and tried together before the court and a jury. At the close of the testimony the court directed a verdict on the grounds that as a matter of law it appeared from the evidence that defendant was not guilty of negligence, and that Clara Kielich was guilty of negligence. The motion for a new trial was denied, and plaintiffs appeal. Errors assigned are: Directing the verdict in favor of the defendant; refusing the motion for a new trial; and in sustaining objections of defendant to questions asked by plaintiffs of witnesses.

The accident resulting in injuries to Mrs. Kielich occurred at the intersection of Mitchell street and Fifth avenue in the city of Milwaukee, which cross each other at right angles, Mitchell street running east and west, and Fifth avenue north and south. The street car company operates cars east and west on double tracks on Mitchell street. On the afternoon of March 27, 1920, Clara Kielich was walking west on the north side of Mitchell street, and coming to Fifth avenue she attempted to cross the avenue, when she was injured by defendant's auto truck driven north on the avenue by defendant's servant.Schmitz, Wild & Gross, and Kleczka & Kleczka, all of Milwaukee, for appellants.

Timlin & Dean, of Milwaukee, for respondent.

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

[1] The questions presented are: Does the evidence disclose as a matter of law that there was no want of ordinary care on the part of defendant's driver in operating its auto truck at the time of the collision? and, Was there any want of ordinary care on the part of Clara Kielich contributing to the accident, as a matter of law?

Clara Kielich testified that she was a married woman, and that about 5 o'clock on the day of the accident she came to Fifth avenue, walking west on Mitchell street, and at the time there was a street car going west on Mitchell street and about to cross Fifth avenue. She looked south on Fifth avenue, but by reason of the street car crossing the avenue she could not see beyond the car, and then she looked north as she saw the car passing, and walked straight from east to west. The street car went faster than she, and got by her before she was injured. When the car passed by, and she again looked to the south, defendant's auto truck coming from the south was upon her. It was about 3 feet distant, and she was so frightened that she did not move. The car struck her and ran over her body. She was badly injured, and did not learn just what happened after the auto truck struck her. She claimed that she had walked about 12 to 15 feet from the curb when she first saw the truck, and there was no horn blown and no signal given. Witness testified that she saw people on the crosswalk, walking ahead of her, and that there was a crowd of people on Fifth and Mitchell. The street car had not passed her before she left the curb. It was going as she stepped off the curb. When she first saw the truck it was 3 feet south of her, going north. The street car going west went pretty fast. When she went on the street the car was just with her. When she looked north she saw nothing; then when she looked south she saw the truck.

Ingnatz Tershiner testified:

“I am a laborer and a musician. I saw the accident. I was standing about 15 feet from the corner. I saw Mrs. Kielich just when she got hit with the corner of the front radiator, when she fell down. The truck came from south to north. The front right wheel ran over her. I hollered to stop the machine. When the truck stopped, Mrs. Kielich was lying between rear and front wheel. I noticed a street car just before she was hit. That car passed. Did not see the truck before it hit Mrs. Kielich. There were a good many people there at that corner. It was light around 5 o'clock. I saw the car pass and the truck come across the street after the car had passed. The radiator, the right-hand side corner, struck Mrs. Kielich. The streets were dry at that time. I had been watching the medicine man on the corner. I was just going to walk away, and then I saw the accident. The truck was driving slowly, along the east side of the roadway.”

Joseph Kasmierczak testified:

“I saw the accident on corner of Fifth avenue and Mitchell street at the time Mrs. Kielich was injured. I noticed Mrs. Kielich first when she was crossing the street shortly before the injury. The street car was going west, and this truck came right in back as Mrs. Kielich was going across the street and the truck hit her; the front of the radiator. If the front wheel hit her I couldn't say, because I was too busy to try to get up in front of it, trying to stop the machine from going any further. I was one of the persons trying to stop the driver from going further, and then I hollered and tried to pull this lady out, but I couldn't pull her out because the hind end of the wheel was on so tight that you couldn't pull her out without backing the truck. Her legs were under the truck and the body was under the truck. When the truck hit her she fell. I saw Mrs. Kielich take quite a few steps from the sidewalk before she and the truck came together. I should think she was about 10 feet from the curb. I should judge the truck went about from 5 to 10 miles. I wouldn't say it went over 5 miles an hour.”

Mrs. Kielich had a fracture of both bones of the right forearm, and a severe crushing injury to the soft parts of the left thigh. She had...