Meyer v. Niedhoefer & Co.

• Decision Date: 05 December 1933
• Citation: 251 N.W. 237,213 Wis. 389
• Court: Wisconsin Supreme Court
• Parties: MEYER v. NIEDHOEFER & CO. ET AL.

213 Wis. 389

251 N.W. 237

MEYER

v.NIEDHOEFER & CO. ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1933.

Two appeals from a judgment of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.

Action by Clara Meyer against Niedhoefer & Co. and John Pollet. Judgment for plaintiff, and defendants appeal.--[By Editorial Staff.]

Reversed as to defendant last named, and cause remanded for new trial, and otherwise affirmed.

Action to recover damages for personal injuries sustained by plaintiff August 12, 1931, in a collision between a street car in which plaintiff was a passenger and the truck of defendant Pollet, when it turned to avoid colliding with another truck that had been obliged to change its course by the acts of the driver of a truck owned by defendant Niedhoefer & Co. The action was begun in the civil court of Milwaukee county November 9, 1931. That court directed a verdict against Pollet, holding that his negligence was established by the uncontradicted evidence, and submitted the question of the negligence of Niedhoefer & Co. to the jury, who by special verdict found that Alfred Tischaefer, driver of the Niedhoefer truck, was negligent as to lookout, speed, operation, and that each failure to exercise ordinary care was a cause of the collision and damage. Assessed the damages at $475. Motions made after verdict by defendants were denied, and judgment was ordered against both defendants. Each defendant appealed from the rulings and judgments of the civil court to the circuit court where judgment was affirmed June 10, 1933. From the judgment accordingly entered, these appeals were taken.

Bendinger & Hayes, of Milwaukee, for appellant Niedhoefer & Co.

Rouiller & Dougherty, of Milwaukee (Robert E. Tehan, of Milwaukee of counsel), for defendant Pollet.

H. J. Aronson and M. R. Bensman, all of Milwaukee, for respondent Meyer.

FAIRCHILD, Justice.

Each of three trucks and a street car entered into the chain of events resulting in respondent's damage. The truck of appellant Niedhoefer & Co. is referred to in the evidence as the yellow truck, that of appellant Pollet as the gravel truck, and the other truck involved as the malt truck. It is conceded that the driver of the malt truck and the operator of the street car were free from negligence.

[1][2][3] A jury question existed as to the negligence of the driver of the yellow truck. The usual questions with relation to the negligence of this driver were properly submitted, and there is evidence supporting the findings of the jury. This evidence was believed by the jury, and is therefore to be accepted here as controlling. Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 228 N. W. 741. The evidence is to the effect that the yellow truck traveling east on Buffalo street, approached North Water street from the west at a time when the malt truck was crossing the south crosswalk of the intersection of the two streets. The malt truck was followed closely by the gravel truck owned by appellant Pollet. The Niedhoefer or yellow truck entered the intersection without stopping, at a speed of from 25 to 30 miles an hour. It turned south on North Water street, and was confronted with a partial obstruction caused by a truck double-parked standing out in the street. This interfered with the yellow truck following a course directly south and on the right side of the street. The driver did not stop, but swung the yellow truck to the left, cut over to the street car tracks (a double set of which run north and south on North Waterstreet), ahead of the malt truck, causing the driver of that truck to slow up and swing to his left out of the path he had been following, and both trucks barely missed hitting a north-bound street car. The action of the two trucks just described caused the driver of the gravel truck to meet a new and suddenly created condition. He was placed in a situation where he had to choose between striking the truck in front of him or avoiding it by turning to the right or the left. He applied his brakes, turned to the left into the path of the north-bound street car which he had not seen until then, because the malt truck which he was following had a canvas top which obstructed his view toward the south. The collision between his truck and the street car in which respondent was riding occurred almost immediately after he turned to the left. The place fixed as the point of collision was upwards of 28 feet from the curb line of the southwest corner of the intersection. The evidence briefly summarized very apparently supports the findings of the jury as to the negligence of the appellant Niedhoefer & Co., the owner of the yellow truck, that such negligence was a proximate cause of the accident and of respondent's injury. There was no collision between the yellow truck itself and the street car, but there...