Raszeja v. Brozek Heating & Sheet Metal Corp.

• Decision Date: 27 October 1964
• Citation: 25 Wis.2d 337,130 N.W.2d 855
• Parties: Stanley RASZEJA, Appellant, v. BROZEK HEATING & SHEET METAL CORP., a Wis. corporation et al., Respondents.
• Court: Wisconsin Supreme Court

Page 855

130 N.W.2d 855 25 Wis.2d 337 Stanley RASZEJA, Appellant,
v.
BROZEK HEATING & SHEET METAL CORP., a Wis. corporation et
al., Respondents. Supreme Court of Wisconsin. Oct. 27, 1964.

Goldberg, Previant & Uelmen, Milwaukee, for appellant.

Moore & Moore, Milwaukee, for respondents.

BEILFUSS, Justice.

The plaintiff contends that it was error to submit questions as to contributory negligence and cause on the part of the plaintiff and that if he was guilty of contributory negligence it could not have been as great a contributing factor to his injuries as the causal negligence of defendants. He asks for a new trial in the interests of justice.

[25 Wis.2d 342] Contributory Negligence of the Plaintiff

The first five questions of the special verdict and the jury's answers are as follows:

'QUESTION NO. 1: Were Donovan Nelson and Kenneth E. Roberts negligent in the unloading of the crates in the truck at the time and place in question?

'ANSWER: Yes.

'QUESTION NO. 2: If your answer to Question No. 1 is 'Yes', then answer this question: Was such negligence a cause of the plaintiff's injury?

'ANSWER: Yes.

'QUESTION NO. 3: Was the plaintiff, Stanley Raszeja, negligent in the unloading of the crates in the truck at the time and place in question?

'ANSWER: Yes.

'QUESTION NO. 4: If your answer to Question No. 3 is 'Yes', then

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answer this question; Was such negligence a cause of the plaintiff's injury?

'ANSWER: Yes.

'QUESTION ON. 5: If your answer to all of the preceding questions is 'Yes', then only answer this question: Taking the combined negligence which produced the injury as 100%, what percentage of such negligence is attributable to:

'(a) Donovan Nelson and Kenneth E. Roberts?

'ANSWER: 40.

'(b) Plaintiff, Stanley Raszeja?

'ANSWER: 60.'

The plaintiff objected to the inclusion of Questions No. 3, 4 and 5 upon the ground that the defendants produced no credible evidence to sustain a finding of negligence on the part of the plaintiff. This motion was overruled by the trial court.

The test is not whether the defendants introduced credible evidence to warrant a finding of causal negligence on the part of the plaintiff but rather whether there is any credible evidence before the jury upon which such finding could be based.

We are of the opinion that there is credible evidence in the record which if believed by the jury, together with reasonable inferences, does sustain a finding of causal negligence on the part of the plaintiff.

[25 Wis.2d 343] The only instruction given to the jury (with the approval of the parties) as to the duties of the respective parties was the general defintion of negligence taken from Wis--J I Civil, Part I, 1005. The instruction is as follows:

'A person is negligent when he fails to exercise ordinary care. Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails...