Rodaks v. Herr

• Citation: 213 Wis. 310,251 N.W. 453
• Parties: RODAKS v. HERR.
• Decision Date: 05 December 1933
• Court: Wisconsin Supreme Court

213 Wis. 310

251 N.W. 453

RODAKS

v.HERR.

Supreme Court of Wisconsin.

Dec. 5, 1933.

Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge.

Action by Stanley Rodaks against David Herr. Verdict finding both parties negligent and fixing plaintiff's damages, and from an order for a new trial, defendant appeals.--[By Editorial Staff.]

Affirmed.

The order appealed from was entered January 19, 1933, and granted a new trial in the interests of justice. The action was commenced on September 12, 1930, by Stanley Rodaks against David Herr, for injuries sustained when plaintiff, a pedestrian, was struck by an automobile operated by the defendant. The accident occurred on May 4, 1930. The case was tried to the court and a jury, and the jury found both plaintiff and defendant negligent and fixed plaintiff's damages at $6,000. Upon this verdict plaintiff moved to change the answer to the question involving plaintiff's contributory negligence from “yes” to “no,” or, in the alternative, for a new trial for the reason that justice has not been done. Defendant moved for judgment upon the verdict. The court ordered a new trial in the furtherance of justice. Defendant appeals.Wallace Reiss, of Milwaukee, for appellant.

Joseph A. Padway, of Milwaukee (Nora B. Padway, of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

The extremely limited character of reviews by this court in cases where trial courts have ordered new trials in the interests of justice has been too fully and too recently discussed to warrant any extended consideration here. Larson v. Hanson, 207 Wis. 485, 242 N. W. 184;Mellor v. Heggaton, 205 Wis. 42, 236 N. W. 558;Sichling v. Nash Motors Co., 207 Wis. 16, 238 N. W. 843. This is recognized by the defendant, whose contention upon this appeal is limited to the claim that there is no evidence to support plaintiff's case, and that consequently there should have been a directed verdict in accordance with the motion of the defendant.

[1][2][3] The accident happened on Kilbourn road, which is a continuation to the south of Milwaukee of South Twenty-Seventh street. The road was eighty feet wide to a point about eighty feet south of Euclid avenue, where there was a sharp cut of twenty feet on the west side of the concrete, reducing the width to sixty feet. The sixty-foot width continued to the south for approximately 400 feet, at which point there was a gradual narrowing on the west side of thirteen and one-half feet on a diagonal extending sixty-three and one-half feet, and on the east side an abrupt narrowing of twenty-three feet, so that to the south the concrete was reduced to twenty-three and one-half feet in width. The accident happened on this narrow portion of the road, while the plaintiff was walking in a northerly direction and defendant was driving his automobile in a southerly direction.

It is the claim of the plaintiff that the defendant, proceeding south, drove his car off the concrete and on to the shoulder of the road shortly before reaching the narrow portion of the highway, and that he struck the plaintiff, who was then properly on the shoulder of the road. The principal attack upon the plaintiff's testimony is that he told conflicting stories. Upon the adverse examination he stated that he was walking on the east side of the road upon the concrete, and that the defendant's car swung clear across the road and knocked him down. His story upon the trial was that he was about two feet west of the west edge of the concrete on the dirt shoulder, and saw the lights of the defendant's car shining upon him; that when they were close he jumped, but which way he doesn't know; that he was on the soft part of the road when he jumped; that he saw defendant's car when it was still on the west part of the road and headed directly toward him; that when defendant's car was fifty feet away it was not on the dirt part of the road, but got on to the shoulder when it was about ten feet away from plaintiff.

Defendant's version, on the other hand, was that he was on the concrete at all times; that he did not see plaintiff until the latter was four or five feet in front of the car and on the concrete. His wife and defendant both testified that Rodaks was walking in a northeasterly direction upon the concrete at the time he was hit. It is perfectly plain that there is a conflict in the evidence and that there was a jury question unless the fact of Rodaks' widely conflicting stories makes his evidence upon the trial entirely incredible. Plaintiff suffered severe injuries about the head, and there was evidence that these affected his ability to recall the events of the collision. Certainly the jury could conclude that plaintiff did not deliberately falsify, although it may be conceded that his...