Mueller v. O'Leary

• Citation: 257 N.W. 161,216 Wis. 585
• Parties: MUELLER v. O'LEARY.
• Decision Date: 06 November 1934
• Court: United States State Supreme Court of Wisconsin

216 Wis. 585

257 N.W. 161

MUELLER

v.O'LEARY.^a1

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from a judgment of the Circuit Court of Milwaukee County; Edgar V. Werner, Circuit Judge. Reversed.

This is an action begun on the 17th day of April, 1931, by Edith Mueller, guardian ad litem of Robert Mueller, a minor, against Z. F. O'Leary, as administrator of the estate of John Liska, deceased, to recover damages sustained by Robert Mueller consequent upon the plaintiff being struck by an automobile driven by John Liska, deceased. At the close of the trial, the court directed a verdict for the defendant and on the 5th day of October, 1933, judgment was entered dismissing plaintiff's complaint, from which judgment the plaintiff appeals.

The accident occurred on July 21, 1930, when Robert Mueller was seven years and ten months of age. On his way home from Sunday school he walked toward his home in a southeasterly direction, on the southwest sidewalk of Kinnickinnic avenue. He crossed the intersection of South Herman street, which street runs north and south. The southerly side of Herman street forms an acute angle where it intersects the southwesterly side of Kinnickinnic avenue. The plaintiff, after looking into the windows of a drug store, started in a northeasterly direction across Kinnickinnic avenue. The automoble was straddling the curb rail of the southeasterly-bound street car tracks on Kinnickinnic avenue. The plaintiff testified that at the time he started to cross the street, the automobile was at a point which appears by measurements to be 171 feet to the northwest. The distance which he traveled, after making the observation and before being struck, was approximately 18 feet. The evidence is in dispute as to whether the boy walked or ran. Upon the trial the plaintiff testified that he could form no idea as to the speed of the automobile; that he did not run into the street but walked; that he looked before he started and did not look again before he was struck. There was testimony to the effect that the Liska car was traveling at the rate of 25 to 30 miles an hour. Plaintiff came in contact with the front of the automobile and was rolled or carried a short distance. It appears that the automobile stopped from 5 to 7 feet after the impact.

It does not appear whether the trial court considered that Liska, the driver of the car, was guilty of no negligence or whether the plaintiff was guilty of contributory negligence as a matter of law.

Seher & Seher, of Milwaukee, for appellant.

Bender, Trump & McIntyre, of Milwaukee (E. L. McIntyre, of Milwaukee, of counsel), for respondent.

ROSENBERRY, Chief Justice.

If the judgment rendered in this case can be supported, it must be upon two grounds: First, that as a matter of law, the defendant was guilty of no negligence; second, that, if the defendant was guilty of negligence, the plaintiff was guilty of contributory negligence as a matter of law.

The facts in this case arose before the enactment of the so-called comparative negligence law (St. 1933, § 331.045) so that that law has no application. The defendant seeks to sustain the judgment here upon the ground that plaintiff is guilty of contributory negligence as a matter of law. This position is taken advisedly for there is evidence in the record from which a jury might find that the deceased was guilty of a want of ordinary care with respect to speed, lookout, and perhaps in other particulars. We shall not further consider that aspect of the case.

[1] In determining whether or not the trial court was in error in directing the verdict, this court must take that view of the evidence which is most favorable to the party against whom the verdict is directed. The situation can be best understood, in fact it is difficult to understand it without...