Mitchell v. Raymond

• Decision Date: 13 November 1923
• Citation: 195 N.W. 855,181 Wis. 591
• Parties: MITCHELL v. RAYMOND ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

181 Wis. 591

195 N.W. 855

MITCHELL

v.RAYMOND ET AL. (TWO CASES).

Supreme Court of Wisconsin.

Nov. 13, 1923.

Appeal from Circuit Court, Lincoln County; A. H. Reid, Judge.

Two actions, one by Jane Mitchell against Mark M. Raymond, wherein George Morey was made party defendant upon motion of defendant Raymond, the other by M. White Mitchell against Mark M. Raymond and others, tried together. From judgments for plaintiffs against defendant Raymond, which directed that, upon payment, such defendant might recover of his codefendant Morey one-half thereof, Raymond and Morey both appeal. Judgments affirmed.

August 23, 1921, the plaintiff Jane M. Mitchell with several others in an Essex roadster, being driven by defendant George Morey, were riding southwesterly on county highway A. This highway joins with, but does not cross, state trunk highway 63, which here runs north and south from Eagle river to Rhinelander.

The defendant Mark M. Raymond, with several passengers was driving his seven-passenger Buick automobile north on highway 63. A collision occurred on highway 63 and about opposite the said end of county highway A, and as a result Mrs. Mitchell was injured.

An action was commenced by Mrs. Mitchell against the defendant Raymond for her personal injuries. Another action was brought against him by the plaintiff M. White Mitchell, her husband, to recover the damages to him sustained by reason of such injuries to his wife. By consent the two actions were tried together. Upon motion of the defendant Raymond, George Morey was also made a defendant. Afterwards these two defendants claimed as against each other the damages done to their respective automobiles. The defendant Raymond also asserted a right to contribution against the defendant Morey for one-half the amount of any judgment that might be obtained against him by the plaintiff.

Upon the trial the following, in substance, was the special verdict: (1) The defendant Raymond failed to use ordinary care. (2) Such failure of Raymond was a proximate cause of the collision. (3) The defendant Morey failed to use ordinary care. (4) Such failure of Morey was a proximate cause of the collision. (5) Plaintiff Jane M. Mitchell did not fail to use ordinary care for her own safety. (6) Jane Mitchell sustained $1,500 damages by reason of her injuries. (7) M. White Mitchell sustained $500 damages. (8) Defendant Raymond's automobile was damaged to the amount of $227,41. (9) The defendant Morey's automobile was damaged to the amount of $358.92.

Subsequent to the verdict the trial court made and filed additional findings of fact to the effect that neither of the defendants was guilty of gross negligence proximately contributing to the collision.

After consideration of the motions made by the respective parties after verdict, the court determined that each of the defendants, having been found negligent by the verdict of the jury, neither could recover as against the other for the damages done to their respective automobiles. The court also determined and directed entry of judgment in favor of the plaintiff Jane Mitchell against the defendant Raymond for the sum of $1,500 damages with costs and disbursements, and directed also that, upon the payment of such amount by the defendant Raymond to the plaintiff, then the defendant Raymond should have and recover from defendant George Morey one-half thereof. A similar judgment was directed in favor of the plaintiff M. White Mitchell against the defendant Raymond, for $500 damages with costs and disbursements, and a similar provision for contribution as to said judgment as in the foregoing.

The defendant Raymond appealed from the said judgment so far as they awarded damages against him. The defendant Morey appealed from so much thereof as awarded contribution against him in favor of defendant Raymond.

Charles F. Smith, of Rhinelander, and Fisher & Cashin, of Stevens Point, for appellants.

Duffy & McGalloway, of Fond du Lac, for respondents.

ESCHWEILER J. (after stating the facts as above).

There is considerable dispute in the testimony of the several witnesses as to the situations surrounding the collision of the two automobiles immediately prior to the time of the collision. If the testimony of all those who were in the automobile in which Mrs. Mitchell was riding was to be taken literally, the Morey automobile was under proper control, kept to the right-hand side of the county highway A at the time they entered onto state highway 63, and was on the right-hand side of said highway at the time of the collision, and the entire fault for such accident should properly be placed upon the defendant Raymond. On the other hand, under defendant's version and as testified to by other witnesses, including the occupants of his car, defendant's car was approaching the point of collision at a very low rate of speed and was run into by Morey's car running at an excessive rate of speed and cutting the corner formed by the opening of the county highway 63, and at a point where a high embankment at the southeast corner shut off the view from either highway of approaching vehicles from the other until they were within a very short distance apart.

[1] A very vigorous assault is made on behalf of defendant Raymond upon the finding of the jury of his negligence and the approval of such finding by the trial court. We can see no useful purpose served in the discussion of the varying and conflicting details given by the various witnesses as to this transaction, for a consideration of the entire record satisfies us that the jury were warranted in the conclusions at which they necessarily arrived as found embodied in their verdict and approved as it was by the trial court. The facts warrant the conclusions reached by the jury and trial court that the driver of each automobile was driving at an excessive and unreasonable rate of speed and that the negligence of each driver was deemed a proximate cause of the injuries to plaintiff, and we cannot therefore disturb such conclusions.

[2] The defendant Raymond also contends that Mrs. Mitchell, riding as she had been for a considerable distance before reaching highway 63 as the fourth occupant of an automobile with seating facilities that would ordinarily accommodate but three passengers and necessitating her riding seated on a cushion on the lap of another member of her party, being thereby brought in rather close proximity to the windshield of the Morey automobile, could not properly be acquitted of contributory negligence as was done by the verdict. On this question also a consideration of the record does not warrant our changing the result in that regard.

[3][4] The defendant Raymond argues that the court improperly instructed the jury as to the right of way at highway intersections of the vehicle approaching from the right under section 1636--49, 1, Stats., contending that, inasmuch as the county highway A, on which the Morey automobile was driving, merely opened into and did not stretch across the state highway 63 on...