Poneitowcki v. Harres

• Decision Date: 03 December 1929
• Citation: 200 Wis. 504,228 N.W. 126
• Parties: PONEITOWCKI ET AL. v. HARRES.
• Court: Wisconsin Supreme Court

200 Wis. 504

228 N.W. 126

PONEITOWCKI ET AL.

v.HARRES.^a1

Supreme Court of Wisconsin.

Dec. 3, 1929.

Appeal from two judgments of the Circuit Court for Racine County; E. B. Belden, Judge. Affirmed.

Actions begun December 3, 1928; judgments entered April 5, 1929.

Two actions begun for damages by reason of personal injuries received by Katie Poneitowcki, one by the injured woman, and one by her husband, William Poneitowcki. The two actions were joined and tried together before a jury.

There was a special verdict, and judgments entered thereon in favor of the plaintiffs. The defendant appealed.C. F. Rouiller, of Milwaukee (Peter J. Myers, of Racine, and E. L. McIntyre, of Milwaukee, of counsel), for appellant.

Simmons, Walker & Wratten and Harold J. Sporer, all of Racine, for respondent.

CROWNHART, J.

The respondent, Katie Poneitowcki, at her request, went with the appellant, John Harres, in his automobile on a trip from Racine to Chicago, July 19, 1928. In the car on the trip were the appellant's wife, in the front seat, right side; appellant in the driver's seat, driving, and between them their six or seven year old daughter; in the back seat at the right end sat the respondent, with her baby in her lap; on the left end sat Mrs. Kowalsczyk with her baby in her lap; and between the two women sat Mrs. Brszenski. All were neighbors in Racine. Appellant ran a grocery store and meat market in that city.

The appellant was an experienced driver of automobiles, having driven a great deal during the preceding 10 years. On this day he drove a Marmon Eight sedan. It was in good condition, had four-wheel brakes, and good headlight. Appellant had driven this car some 3,000 miles at the time.

All went well on the road to Chicago. They started home about 9 or 9:30 p. m., Chicago time; 8 or 8:30 p. m., standard time. According to the testimony of the respondent and Mrs. Brszenski, the appellant drove very fast on the way back, and his wife frequently urged him to go slower, and both the respondent and Mrs. Brszenski did likewise. But appellant ignored their request, and at one time stopped his car and suggested that his wife get out, if she did not like his driving. There was much of this testimony quite in detail, going to show that appellant drove recklessly a large part of the time up to the point of the accident. On the other hand, appellant and his wife testified directly to the contrary as to this. Mrs. Kowalsczyk was sick and unable to be present at the trial.

When appellant came near to Waukegan, Ill., going north on United States Highway 41, his car ran off the concrete on the east side and ran along the shoulder next to the concrete. Appellant testified that he was crowded off the concrete by a car going south on its wrong side of the road. He testified that, before this, some one had played a flashlight on the road and he had slowed down to 15 to 20 miles per hour, but that he kept going at that speed while off the concrete for some 15 rods, without applying his brakes or making any attempt to further reduce his speed. He then attempted to get back on the concrete, and his front wheels got back, but owing to the fact that the dirt shoulder was 5 or 6 inches lower than the concrete, and was rutted, his hind wheel skidded along the side of the concrete, resulting in jerking the steering wheel out of his hand, the car turning around heading southeast, with the front wheels on the concrete and the hind wheels on the west dirt shoulder, where it tipped over in the west ditch of the highway, resulting in the injuries to the respondent of which complaint was made in the action. The respondent and Mrs. Brszenski denied that appellant slowed down the speed of his car before the accident.

Briefly, such was the evidence submitted to the jury and upon which they found (1) that the appellant failed to exercise ordinary care (a) by driving at an excessive rate of speed; (b) by driving at a greater rate of speed than was reasonable having regard for the condition of the highway and the rules of the road; (c) by driving his automobile so as to endanger the property, life or limb of any person; (d) by failing to keep a proper lookout; (2) by failing to have his car under proper control; that each such act of negligence was the proximate cause of respondent's injuries; and that appellant ought reasonably to have foreseen that such injuries might have probably followed his negligent acts. Damages were assessed to the respondent Katie Poneitowcki $6,000 and to William Poneitowcki, $1,500. The jury further found that the respondent Katie Poneitowcki did not fail to use ordinary care.

[1] The first contention of the appellant is that there is no credible evidence to support the verdict. It is unnecessary to discuss the evidence at length. The appellant could see the situation he was in when he left the concrete. He had ample opportunity to slow down to a safe pace to get back on the concrete. He was an experienced driver, and must have been fully cognizant of the danger of his wheels slipping along the side of the concrete, which was approximately 6 inches higher than the dirt shoulder upon which he was traveling. The evidence clearly presented a jury question as to appellant's negligence.

[2] It is contended that appellant was confronted with a sudden emergency which excused him for losing control of his car. We fail to discover any emergency from the testimony of appellant himself. There did not appear to be any obstruction to require him to turn onto the concrete until he could slow down his car to make the turn safely. He had plenty of time to exercise judgment and caution in getting back on the pavement.

[3][4] Appellant assigns as error that the damages assessed by the jury are so excessive as to indicate perversity on the part of the jury. Mrs. Poneitowcki sustained a...