Ludke v. Burck

• Decision Date: 13 April 1915
• Citation: 152 N.W. 190,160 Wis. 440
• Parties: LUDKE v. BURCK.
• Court: Wisconsin Supreme Court

160 Wis. 440

152 N.W. 190

LUDKE

v.BURCK.

Supreme Court of Wisconsin.

April 13, 1915.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Charles Ludke against Diedrich Burck. From an order granting new trial, defendant appeals. Affirmed.

This is an action by Charles Ludke to recover for loss of services of his minor son, Herbert Ludke, who was injured by an automobile owned and driven by the defendant. The boy was 13 years of age. The accident occurred June 8, 1913, upon Forrest Home avenue, near the intersection of Fourteenth avenue, in the city of Milwaukee, It appears that a person riding in a passing automobile had lost his hat, and that the boy endeavored to recover it, and, while doing so, was struck and seriously injured by the automobile owned and driven by the defendant. The complaint alleges that defendant was negligent in that he was operating his car at a high and dangerous rate of speed; that he operated it recklessly; and that he endangered property and life and limb of people, who might be upon the street, by such negligent operation of the car.

The court submitted a special verdict to the jury. After deliberating over 24 hours on their verdict, the jury announced that they had agreed upon only two questions, and that questions 2 and 3 were among those upon which they had been unable to agree. The court thereupon, of its own motion, withdrew questions 2 and 3, and the jury were instructed to resume their deliberations upon the other questions of the verdict. The questions withdrawn were:

“(2) At the time of that collision, was the defendant operating his automobile at a speed exceeding 15 miles per hour?

(3) If you answer question No. 2, ‘Yes,’ then answer this question: Was the operation of the automobile at that time at a speed exceeding 15 miles per hour a proximate cause of the injury to Herbert Ludke?”

After the withdrawal of these two questions, the jury returned a verdict finding that defendant failed to exercise ordinary care in observing plaintiff's son, and thereby proximately caused the collision, and that the boy's negligence contributed to produce the collision. They awarded compensatory damages in the sum of $369.70.

The defendant moved for judgment upon the verdict, which motion was denied. The plaintiff's motion to set aside the verdict and for a new trial was granted, and a new trial ordered. The court announced that the new trial was granted for the reason that the withdrawal of questions 2 and 3 from the special verdict and the consideration of the jury operated to the prejudice of plaintiff's legal rights. From such order this appeal is taken.Glicksman, Gold & Corrigan and A. J. Pellette, all of Milwaukee, for appellant.

Doerfler, Green & Bender, of Milwaukee, for respondent.

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

[1] The ruling of the trial court presents the question whether or not the contributory negligence of a traveler upon a city street is available as a defense in an action for personal injury alleged to have been caused to such traveler by a person who negligently drives an automobile in excess of the legal speed limit. The trial court held that if a violation of section 1636--49, prescribing a speed limit of 15 miles per hour for running automobiles on city streets, resulted in personal injuries to a traveler on such streets, then the defense of contributory negligence of such injured traveler is not available in an action for recovery of damages for such injury. The court based the ruling upon the authority of the decisions in Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803, and Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84, wherein it was held that:

“Where the violation of a statute designed to protect persons against bodily injuries is made a criminal offense, such a violation should be classed with gross negligence, and for injuries resulting therefrom the guilty person should be held liable in a civil action, regardless of contributory negligence on the part of the person injured.” (Headnote.)

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