Mills v. Conley

• Decision Date: 21 May 1901
• Citation: 86 N.W. 203,110 Wis. 525
• Court: Wisconsin Supreme Court
• Parties: MILLS v. CONLEY.

110 Wis. 525

86 N.W. 203

MILLS

v.CONLEY.

Supreme Court of Wisconsin.

May 21, 1901.

Appeal from superior court, Milwaukee county; Orren T. Williams, Judge.

Action by Clarence S. Mills against Joseph Conley. From an order denying defendant's motion to set aside a finding, part of a special verdict, and for judgment, and from an order setting aside the special verdict and granting a new trial, the defendant appeals. Appeal from the order denying defendant's motion dismissed, and the order granting a new trial reversed, and case remanded, with directions.L. A. Thompson and Blatchley & Burke, for appellant.

Herbert Kinne, for respondent.

CASSODAY, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff while walking west upon the sidewalk on the south side of State street, and when in the act of crossing Thirteenth street, by being struck by a bicycle upon which the defendant was at the time riding. The accident happened about 9 o'clock on the evening of September 4, 1898. Issue being joined, and trial had, the jury returned a special verdict to the effect: (1) That the bicycle ridden by the defendant southerly on Thirteenth street, September 4, 1898, collided with the plaintiff when upon the street crossing, and threw him with such violence upon the ground as to cause the injuries of which he complains; (2) that the defendant did see the plaintiff walking west on State street in time so that, by the exercise of ordinary care, he could have avoided the accident; (2 1/2) that the defendant was guilty of negligence which was the proximate cause of the plaintiff's injury; (3) that the plaintiff could not, by the exercise of ordinary care, under the existing circumstances, have seen the defendant riding down Thirteenth street on his wheel in time to have avoided the accident; (4) that a person of ordinary intelligence and prudence, in the exercise of ordinary care, under the circumstances existing at the time and place of the accident, ought to have reasonably expected that the attempted passing of the defendant upon his bicycle by the plaintiff at the time might probably result in such injury to the plaintiff as occurred; (5) that the plaintiff was guilty of a want of ordinary care, which proximately caused or contributed to such collision; (6) that such collision and injury were not caused without any negligence on the part of either of the parties; (7) that they assessed the plaintiff's damages at $450. Thereupon the defendant moved the court to set aside the third finding of the special verdict, for the reason that the same was not sustained by the evidence, but was contrary to the undisputed evidence in the case, and for judgment in favor of the defendant on the remainder of the special verdict. At the same time the plaintiff moved the court to set aside the fifth finding of the special verdict, for the reason that it was not supported by the testimony in the case, but was contrary to such testimony and the law; and that the fifth finding was mere surplusage, and contrary to and inconsistent with the third finding of the special verdict; and for judgment in favor of the plaintiff upon the special verdict with the fifth finding thereof set aside; and, in case of the denial of such motion, then the plaintiff moved the court for an order setting aside the special verdict, and the whole thereof, and for a new trial of the action, upon the grounds: (1) That the fifth finding was not sustained by the evidence in the case, and was contrary to such evidence; and (2) that the fifth finding was inconsistent with the third finding of the special verdict; and (3) that the fifth finding was contrary to law and the instructions of the court pertaining thereto. Thereupon the court overruled and denied the defendant's motion, “with costs,” and entered an order accordingly, from which the defendant has appealed to this court. The court also entered an order overruling and denying the plaintiff's motion to set aside the fifth finding, and for judgment, but granted, “with costs,” the plaintiff's motion to set aside the special verdict, and the whole thereof, and for a new trial of the action. From the order setting aside the special verdict and granting a new trial, the defendant appeals to this court.

As indicated in the statement, the jury, by the third finding, found that the plaintiff could not, by the exercise of ordinary care, under the circumstances, have seen the defendant in time to have avoided the accident. The question did not call for an answer as to whether the plaintiff ought to have seen the defendant, but whether he “could” have seen him by the exercise of ordinary care. The plaintiff testified to the effect that it was at the time sprinkling, and that his umbrella was up as he passed west onto Thirteenth street; that he heard a noise...