Reichert v. Rex Accessories Co.
| Decision Date | 17 May 1938 |
| Citation | 228 Wis. 425,279 N.W. 645 |
| Parties | REICHERT v. REX ACCESSORIES CO. et al. WOOLRAGE et al. v. REICHERT et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeals from judgments of the Circuit Court for Racine County; E. B. Belden, Judge.
Action by Lollie B. Reichert, administratrix of the estate of Leo W. Reichert, deceased, against Rex Accessories Company and others, to recover for death of Leo W. Reichert, deceased, consolidated with an action by James Woolrage and others against Lollie B. Reichert, administratrix of the estate of Leo W. Reichert, deceased, and others, to recover damages sustained in an automobile collision. From a judgment for plaintiff in the first action, the defendants appeal, and from a judgment in the second action for defendants, the plaintiffs appeal.-[By Editorial Staff.]
Judgment in first action reversed and cause remanded with directions, and judgment in second action affirmed.
Judgment in the action of Lollie B. Reichert, Administratrix of Estate of Leo W. Reichert, Deceased, v. Rex Accessories Company, a Wisconsin Corporation, et al., reversed with directions.
Judgment in the action of James Woolrage et al. v. Lollie B. Reichert, Administratrix of Estate of Leo W. Reichert, Deceased, et al., affirmed.
In the first-entitled action, judgment was in favor of the plaintiff, Lollie B. Reichert, as administratrix of the estate of Leo W. Reichert, deceased, and against defendants, Rex Accessories Company, a Wisconsin corporation, Employers Mutual Indemnity Corporation, and James Woolrage, in the sum of $12,245.27 damages and costs.
In the second-entitled action, judgment was in favor of the defendants, Lollie B. Reichert, administratrix of the estate of Leo W. Reichert, deceased, and Northwestern National Casualty Company, an insurance corporation, and against the plaintiffs, James Woolrage and Rex Accessories Company, dismissing the plaintiffs' complaint with costs. Cases were consolidated and tried together.
The actions arise out of a collision between the Reichert Ford bakery truck and a Chevrolet sedan belonging to the defendant Rex Accessories Company, and driven by Mr. Woolrage, an employee of said company, at the time of the collision. The collision occurred at the intersection of Wolff street and Green street, in the city of Racine, on November 3, 1936. Mr. Reichert sustained injuries in said collision resulting in his death on the same day, without regaining consciousness. Mr. Woolrage sustained serious injuries, as a result of which he suffered a loss of memory and on the trial was unable to give any testimony concerning the collision; because of the injury to his head, his mind was blank as to how the collision occurred and all details in connection therewith. There was no witness to the actual collision.
The plaintiff in the first-entitled action (and all defendants in the second-entitled action) contend that Mr. Reichert was driving his Ford bakery truck in an easterly direction on Wolff street and that the collision occurred when the Chevrolet car, driven by Mr. Woolrage and being driven in an easterly direction on Wolff street, tried to pass the Ford bakery truck on its right side, in the street intersection. They further claim that the Ford bakery truck was proceeding at a slow rate of speed, between 12 and 15 miles an hour, and that the Chevrolet car, traveling at a high rate of speed, struck the right front corner of the Ford bakery truck as it was turning to go south on Green street.
The defendants in the first-entitled action (plaintiffs in the second-entitled action) claim that the Chevrolet car was being operated by Mr. Woolrage in a careful manner, in an easterly direction on Wolff street, when struck in the intersection by the Ford bakery truck, which had come from the north on Green street, and that as a result of the impact, the Chevrolet car was thrown in a southeasterly direction, in a half-circle movement, over the curbing and against the electric light pole located between the curb and sidewalk at the southeast corner of the intersection. They further claim that the Chevrolet car had the right of way in the intersection, that the Ford bakery truck struck the Chevrolet car at a right angle on the left rear side, and that the Chevrolet was across the center line of Green street when the impact occurred.
The case was tried to the court and jury. By its special verdict, the jury found:
(1) That the Ford truck was traveling east on Wolff street as it approached the intersection.
(2) That Woolrage was negligent as to speed, lookout, management and control, in overtaking and passing the Reichert truck and in passing said truck in the intersection, and in failing seasonably to sound warning.
(3) That Woolrage, as a person of ordinary prudence and foresight, ought reasonably to have foreseen that injury to some traveler upon the street might probably follow from such want of care on his part, in each of the respects in which he was found negligent.
(4) Found causation in each of said respects.
(5) Found no negligence on the part of Mr. Reichert, driver of the Ford truck.
(6) That Woolrage was 100 per cent. negligent.
(7) Assessed damages for the pecuniary loss sustained by Mrs. Reichert by reason of the death of her husband at $10,000, for the loss society and companionship of her husband at $1,500, for funeral expenses $299, and for damages to the Ford truck $100; for damages sustained by Mr. Woolrage for his personal injuries $100, and for damages sustained by Rex Accessories Company $581. Also found that at the time of the collision, Mr. Woolrage was acting within the scope of his employment as agent of the Rex Accessories Company.
The usual motions were made after verdict. In the first-entitled action, judgment was entered in favor of the plaintiff, Lollie B. Reichert, as administratrix of her husband's estate, against the defendants, Rex Accessories Company, Employers Mutual Indemnity Corporation, and James Woolrage, in the sum of $11,899 damages and $346.27 costs and disbursements; and in the second-entitled action judgment was entered in favor of the defendants, dismissing plaintiff's complaint and for costs in the sum of $128.52. The defendants appeal from the judgment in the first-entitled action, and the plaintiffs appeal from the judgment in the second-entitled action. Further material facts will be stated in the opinion.
Vilas H. Whaley, of Racine, for appellants.
Gittings, Janecky & Buelow, of Racine, for respondent in first-entitled case.
Simmons, Walker, Wratten & Sporer, of Racine, for respondents in second-entitled case.
These actions arise out of an automobile collision which occurred in the city of Racine, November 3, 1936, at about 8:30 a.m., at the intersection of Wolff street and Green street. Wolff street runs in an easterly and westerly direction and is intersected at a right angle by Green street extending in a northerly and southerly direction. Both streets are paved with a concrete surface. Each is 36 feet in width from curb to curb; the curb being 6 inches high. The distance from the outer edge of the sidewalk to the face of the curb is 6 feet. The width of the sidewalk, on either side of those streets, is 6 feet. There is a public utility pole located a short distance back from the curb line, in the space between the curb line and the sidewalk, at the southeast corner of the intersection.
Mr. Reichert's injuries resulted in his death soon after the collision, and as a result of the injuries sustained by Mr. Woolrage, he suffered a loss of memory and on the trial was unable to give any testimony concerning the collision. We have no eyewitness to the actual collision.
The appellants contend that the Chevrolet car driven by Mr. Woolrage had the right of way in the intersection; that it had passed the center line of Green street when struck at a right angle, on its left side, by the Ford truck being driven by Mr. Reichert in a southerly direction on Green street.
The respondents contend that Mr. Reichert approached the intersection from the west, intending to turn to his right (south), on Green street; that while he was in the act of making such turn, Mr. Woolrage suddenly attempted to pass to the right of the Ford truck, and while so passing or attempting to pass, the collision occurred. Notwithstanding the verdict, we find no substantial dispute as to the following physical facts. There was no injury to any part of the front of the Chevrolet car. The principal point of impact was on the left rear side of the Chevrolet car, against the left rear door and that part of the left rear fender up to a point immediately to the top of the left rear wheel, and to the end of the left running board, at the point where it attaches to the left rear fender. The license plate on the Ford truck, attached to the center part of the front of the Ford, came in contact with the handle of the left rear door of the Chevrolet car, making a dent in the license plate corresponding exactly with the length of the handle and leaving red paint on the outer surface of the handle. The license plate was so elevated on the brackets that by actual measurement the top part of the license plate was up even with the handle indentation made by the handle on the left rear door of the Chevrolet. The principal injury to the Ford truck was on the front right-hand side. The weight of the truck, without load, was 2,970 pounds. The weight of the Chevrolet sedan was approximately 2,800 pounds.
A Mr. Anderson, engaged in the garage business in Racine, was called as a witness for the plaintiff-administratrix. On cross-examination, he testified, in part, as follows:
...
To continue reading
Request your trial
-
Rodenkirch v. Johnson
...by the photographs and other evidence overcame the presumption of due cars and established negligence in Reichert v. Rex Accessories Co., 1938, 228 Wis. 425, 279 N.W. 645. The jury could reasonably conclude the speed of the respondent was great and in excess of 25 miles per hour from the ph......
-
Zillmer v. Miglautsch
...of proof must be such as to remove these ultimate facts from the field of mere speculation and conjecture. Reichert v. Rex Accessories Co. (1938), 228 Wis. 425, 439, 279 N.W. 645; Creamery Package Mfg. Co. v. Industrial Comm. (1933), 211 Wis. 326, 330, 248 N.W. 140. A jury cannot be allowed......
-
Ernst v. Greenwald
...such as will remove the ultimate facts to be found by the jury from the field of speculation and conjecture.' Reichert .v Rex Accessories Co. (1938), 228 Wis. 425, 279 N.W. 645. We stated in Creamery Package Mfg. Co. v. Industrial Comm. (1933), 211 Wis. 326, 331, 248 N.W. 'It will not do to......
-
Stevens v. White Motor Corp.
...191 N.W.2d 725 (1971); Tri City Fur Foods, Inc. v. Ammerman, 7 Wis.2d 149, 152, 153, 96 N.W.2d 495 (1959); Reichert v. Rex Associates Co., 228 Wis. 425, 439, 279 N.W. 645 (1938). Cutler has given neither reason nor authority why this rule should not apply in the case at bar. Findings of the......