Mahegan v. Faber

• Decision Date: 17 November 1914
• Citation: 158 Wis. 645,149 N.W. 397
• Parties: MAHEGAN v. FABER.
• Court: Wisconsin Supreme Court

158 Wis. 645

149 N.W. 397

MAHEGAN

v.FABER.

Supreme Court of Wisconsin.

Nov. 17, 1914.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Timothy Mahegan, executor, etc., against Charles A. Faber. From judgment for plaintiff, defendant appeals. Affirmed.

Action for damages for death caused by an automobile. Eleventh and National avenues in the city of Milwaukee intersect one another, the former running north and south and the latter east and west. Defendant was driving his car south on Eleventh avenue. There was a street car standing on the south track on National avenue and somewhat to the west of the west line of Eleventh avenue. One Gertzke was standing near the southwest corner of the block bounded by the north line of National avenue and the east line of Eleventh avenue. He started in a southwesterly direction on a fast walk or run to catch the street car. When at a place not far from the point of intersection of the center lines of the two streets, defendant observed Gertzke, and, realizing that a collision was imminent, and in an endeavor to avoid it, swung his car to the right. The collision was not avoided, however. Defendant apparently lost his head, and, failing to apply his brake, the car proceeded in a semicircular route toward the corner diagonally across from the one at which Gertzke stood. The left front wheel passed over the curb, and the car ran into a pole located inside of and close to the curb, and nearly on a line with the west boundary of Eleventh avenue. The decedent was apparentlyleaning against the pole, and was crushed between it and the front end of the automobile. His executor brings this action in behalf of his heirs to recover damages for the loss sustained by his death. The jury returned the following verdict:

Question 1. Was the defendant guilty of negligence in the operation of his car at the time and place stated in the complaint, when it struck the deceased James Mahegan?

Answer: Yes.

Question 2. If you answer the first question “Yes,” was such negligence a proximate cause of the death of the deceased?

Answer: Yes.

Question 3. Was Gertzke in the exercise of ordinary care at the time he was struck by defendant's automobile?

Answer: No.

Question 4. If you answer question 3 “No,” was the failure of Gertzke to exercise ordinary care a proximate cause of the death of the deceased?

Answer: Yes.

Question 5. What sum will reasonably compensate the plaintiff, as executor, for the death of the deceased?

Answer: $2,000.

The court set aside the answer to the fourth question in the special verdict, on the ground that the element of reasonable anticipation was wholly wanting, and awarded judgment for plaintiff on the verdict as amended. Defendant appeals.

Burr J. Scott, of Milwaukee (Lawrence A. Olwell, of Milwaukee, of counsel), for appellant.

Charles M. Scanlan, of Milwaukee, for respondent.

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

The defendant urges the following contentions in support of a reversal of the judgment: (1) The verdict does not find that defendant's negligence was the proximate cause of the injury. (2) The jury having found an independent intervening cause, to wit, the negligence of Gertzke, there can be no recovery against the defendant. (3) The court erred in excluding certain evidence offered. (4) The damages awarded are excessive.

[1] 1. Under the circumstances of this case, the substitution of the words “ a proximate cause” for “ the proximate cause,” in questions 2 and 4, could have no possible effect on the jury. If defendant was negligent in running his car where he did (and it is conceded that the jury was justified in so finding), there can be no doubt that such negligence was the proximate cause of the injury. There might be another proximate cause, but this one was established beyond controversy.

[2] 2. Under the findings of the jury in this case, two persons were guilty of distinct acts of negligence which resulted in the death of the deceased. The fact that Gertzke...