Potter v. Potter

• Decision Date: 09 March 1937
• Parties: POTTER et al. v. POTTER et al.
• Court: Wisconsin Supreme Court

224 Wis. 251

272 N.W. 34

POTTER et al.

v.POTTER et al.

Supreme Court of Wisconsin.

March 9, 1937.

Appeal from a judgment of the Circuit Court for Barron County; W. R. Foley, Judge.

Modified and affirmed.

This was an action commenced on April 2, 1936, by Thomas Potter, as special administrator of the estate of Jennie M. Potter, deceased, Thomas Potter, Mildred Hovland, and Frank Hovland, her husband, as plaintiffs, against W. J. Potter, General Accident Fire & Life Assurance Corporation, Limited, and R. C. Smith, as defendants, to recover for personal injuries sustained by plaintiffs when a car operated by defendant W. J. Potter, and in which plaintiffs were riding, collided with a car operated by defendant R. C. Smith. Jennie M. Potter received injuries from which she died two weeks after the accident, and Thomas and Mildred Hovland were injured. Frank Hovland, husband of Mildred, sues for medical expenses and financial loss sustained by reason of his wife's injuries. The action was tried to the court and a jury, and a special verdict submitted. The jury found that defendant W. J. Potter was negligent with respect (a) to keeping a proper lookout, and (b) to failure to yield the right of way to the automobile of Smith. Defendant Smith was found negligent with respect to speed, management, and control. The negligent acts of both W. J. Potter and Smith were found to be causes of the collision and injuries. Plaintiff Thomas Potter and Mildred Hovland, were found negligent with respect to lookout, but this negligence was found not to have been a cause of the collision and injuries. The jury found that 35 per cent. of all negligence producing the collision and plaintiffs' injuries was attributable to W. J. Potter and 65 per cent. to defendant Smith and assessed the damages as follows: The damages suffered by Thomas Potter by reason of his wife's death, $2,250 for pecuniary loss, $330 for burial expenses, and $2,500 for loss of society; the damages suffered by Jennie M. Potter during her lifetime, $500; reasonable and necessary medical and hospital bills, $232.50; damages suffered by Thomas Potter as a result of his injuries, $500; Mildred Hovland, no damages; Frank Hovland, by reason of injuries to his wife, $57. Plaintiffs' motion after verdict to set aside the answer finding no damages on the part of plaintiff Mildred Hovland and to enter judgment for the least amount that any jury could award was granted, and the court gave plaintiff an option to enter judgment on her behalf for $25, or accept a new trial upon the question of her damages. The court granted plaintiffs' motion for judgment on the verdict, and judgment was duly entered on July 1, 1936. Defendants W. J. Potter and General Accident Fire & Life Assurance Corporation, Limited, appeal. The material facts will be stated in the opinion.Bundy, Beach & Holland, of Eau Claire (Lines, Spooner & Quarles, of Milwaukee, of counsel), for appellants.

Wilcox, Wilcox & Sullivan, of Eau Claire, for respondents.

WICKHEM, Justice.

Plaintiff Thomas Potter is the father of defendant W. J. Potter. Plaintiff Mildred Hovland is a sister of W. J. Potter. Plaintiff Frank Hovland is her husband. Jennie M. Potter was defendant's mother. On April 30, 1935, W. J. Potter took his sister, father, and mother for an automobile ride. After riding for some distance in a southerly direction, defendant concluded that the road ahead looked bad and decided to turn around. He proceeded to drive into a farmer's driveway upon his right and to back out onto the highway. The driveway was flanked by an embankment that partly obstructed his vision. He drove far enough into the driveway to enable him to see the road and then backed into the highway without looking again. As his rear wheels were near the center of the road, his automobile was struck by a car driven by the defendant R. C. Smith, who was traveling south on the same highway. As a result, the father, mother, and sister sustained injuries. The mother died from her injuries about two weeks later. There was evidence that the Smith car was about 1,000 feet to the north of the Potter automobile and in sight when the latter started to pull into the driveway. There was also evidence that the Smith car was not in sight either when defendant Potter started to drive into the driveway or when he started to back onto the highway.

[1][2][3][4] Defendants' first contention relates to the contributory negligence of the three guests, defendant Potter's father, sister, and mother. Defendants contend that the record discloses as a matter of law (1) that all of the guests were negligent with respect to lookout; (2) that their negligence in this respect contributed to their injuries; and (3) that this negligence was as great as or greater than that of the defendant. Closely related to this contention is the claim that the trial court should have submitted to the jury the question of the negligence of defendant's mother with respect to lookout. A careful examination of the testimony raises some doubt whether there is any evidence to sustain the finding of the jury that the father and sister of defendant failed to keep a lookout. Both testified to the vaguest sort of recollections of the accident, and the most that can be made from their testimony is that they neither affirm nor deny that they kept a lookout. The sister did testify that as the car started into the driveway they were talking to each other on a subject unrelated to the driving of the car, but there is no evidence that this conversation continued down to the time of the collision. It is extremely doubtful whether such testimony raises a jury question in view of defendants' burden to establish contributory negligence, although in view of our conclusions with respectto cause, it is unnecessary further to consider this question. As to the mother, there is no evidence whatever as to what she did and the presumption that she used due care for her safety operates in view of her death. See Smith v. Green Bay (Wis.) 271 N.W. 28. The trial court correctly held that there was no issue for the jury with respect to her negligence. Assuming that there was a jury question with respect to the negligence of the father and sister, the jury could reasonably draw the inference that, in view of all the circumstances, the negligence was not a cause of the collision or of the injuries. Concededly, the car was driven into a driveway which had embankments on each side. The pitch of the driveway was quite steep, and the pitch was towards the road. This would mean that the opportunity for observation by the passengers would necessarily be somewhat, if not wholly, impaired. Under these circumstances, the jury could conclude that an effective observation could not be made until the last second or two before the accident and that the passengers would not have time to make such an observation and communicate their findings to the driver in time to avoid the collision.

[5] It is next contended that the court erred in refusing to permit appellants to amend their motions after verdict. Judgment was entered July 1, 1936. On August 1, 1936, the trial court signed an order to show cause why the defendants should not be permitted to amend their motions after verdict for the purpose of requesting the court to change the answers to certain questions of the special verdict. After hearing arguments upon this order to show...