Schulz v. Gen. Cas. Co.

• Citation: 288 N.W. 803,233 Wis. 118
• Parties: SCHULZ v. GENERAL CASUALTY CO. et al.
• Decision Date: 05 December 1939
• Court: United States State Supreme Court of Wisconsin

233 Wis. 118

288 N.W. 803

SCHULZ

v.GENERAL CASUALTY CO. et al.

Supreme Court of Wisconsin.

Dec. 5, 1939.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

Action by Hilda Schulz, as administratrix of the estate of Edgar O. Schulz, deceased, against General Casualty Company, an automobile indemnity insurance carrier, and others, to recover for injuries resulting from a collision of the insured automobile, commenced June 20, 1938. From a judgment entered March 9, 1939, against all of the defendants, the defendants appeal.

The husband of the plaintiff administratrix was killed in an automobile collision. The plaintiff as administratrix of her husband's estate sues to recover for the injury to the husband's automobile and for his pain and suffering resulting from the collision and for her damages as his widow so resulting under the death by wrongful act statute, sec. 331.03, Stats. The injuries are alleged to have been caused by the defendant Lund, who was driving a truck with which the automobile of Schulz collided. The defendant Laufenberg is the owner of the truck, and the defendant CasualtyCompany issued to him its policy of insurance indemnifying him to the extent of $5,000 for injury to person and $5,000 for injury to property and costs of action against loss resulting from operation of the automobile. The defendant Lund is alleged to have been operating the truck as the agent of the defendant Middleton Farmers Co-operative Company, a corporation.

The case was submitted to a jury on a special verdict which found Lund causally negligent as to lookout, being on his wrong side of the road, control and speed; found Schulz not negligent as to the three matters first next above mentioned, but causally negligent as to speed; and apportioned the negligence-90% to Lund and 10% to Schulz; found that the defendant Lund was operating the truck as the agent of the defendant Middleton Farmers Co-operative Company; and assessed the damages of Schulz at $1,000 for pain and suffering. The court fixed the damages to the Schulz car at $570 and the funeral expenses of Schulz at $200. The damages to the widow of Schulz were assessed by the jury at $10,000 for pecuniary loss and $2,500 for loss of society. The court struck from the verdict the assessment of damages to Schulz for pain and suffering and granted judgment on the verdict as thus amended, against Lund, Laufenberg and the Co-operative Company for 90% of the aggregate amounts of the amended verdict, and against the Casualty Company for the amount of its liability, plus costs, with provision to credit payments by the latter on the judgment against the other defendants.

The case involves a head-on collision at the top of a hill. The road ran east and west and was straight at and both ways from the point of collision. It was graveled and was conveniently travelable by automobiles for a width of 17 feet. The travel regularly followed the center of the road approximately. The accident occurred about 11 o'clock A. M. April 6, 1938, on a bright clear day. One of the vehicles was a Chevrolet oil truck driven by the defendant Jordan Lund. The other was a Ford automobile driven by Edgar Schulz who died from injuries received in the collision a few minutes thereafter. The vehicles will be hereinafter referred to as the Ford and the truck. The truck was traveling west and the Ford east. The collision occurred a short distance west of the brow of the hill. The road was practically level at the top of the hill for about 60 or 70 feet. It sloped down rather steeply towards the east from the top and to the west also sloped down but not steeply. The traveled tracks of the road were beaten down a little below the surface for a width of about 12 or 15 inches and were plainly visible. West of the point of collision there were skid marks in the center of the beaten tracks which ran straight with the tracks, one of which was 34 feet long. The truck with its load weighed about 5 and a half tons. The Ford carried only the driver and was stopped by the collision, while the truck traveled 60 feet to the west before coming to rest. Both vehicles came to rest practically at right angles to the direction of the road, the front of each being about a foot south of the center of the road. The rear of the Ford was to the south and the rear of the truck to the north. The left from of the Ford collided with the left side of the truck back of the cab. The left front wheel of the Ford was broken off and there was a gouge in the road made by the axle or brake drum of the broken wheel. The exact location of the gouge is somewhat in dispute, some witnesses placing it a foot or two north of the south wheel track of the road, and others putting it as commencing north of the center of the road near the north track of the road. At the point of collision the south edge of the south wheel track was by actual measurement 9 inches nearer the south edge of the gravel than the north edge of the north wheel track was to the north edge of the gravel.

Wilkie, Toebaas, Hart, Kraege & Jackman and Hill, Beckwith & Harrington, all of Madison, for appellants.

Sanborn, Blake & Aberg, Ernest H. Pett, and Edwin Conrad, all of Madison, for respondent.

FOWLER, Justice.

The foregoing states the material facts and the general issues. The claims of the appellants may be briefly stated as follows. They contend that the judgment below should be reversed and dismissal of the complaint should be directed because (1) Lund, the driver of the truck, as matter of law, was not guilty of any negligence under the undisputed evidence, and that if he was guilty of causal negligence, (2) the causal negligence of Schulz, the deceased driver of the Ford, as matter of law, was at least equal to that of Lund. They also claim that if not entitled to dismissal of the action, they are entitled to a new trial because (3) the finding of the jury that Schulz, the driver of the Ford, was not on his wrong side of the road is contrary to the undisputed evidence; and because the court erred (4) in refusing instructions requested by the defendants; (5) in instructing the jury; and (6) in permitting counsel for the plaintiff to state to the jury the maximum statutory allowance of damages for pecuniary loss and loss of society; and because (7) the verdict is perverse for awarding $1,000 damages for pain and suffering of the deceased. The defendant Cooperative Company also assigns as error (8) that the finding of the jury that Lund was operating the truck as its agent is without support in the evidence.

[1][2] (1) The claim that Lund was not guilty of negligence is without merit. By his own testimony he approached the top of a hill which obstructed his view at 35 miles per hour, and though he claimed that when he reached the top he was going only 25 miles per hour, the jury might properly infer that he was unable to stop his car within one-half the distance he could see ahead, as sec. 85.40 (5), Stats., requires. By his own testimony he was driving in the traveled tracks in the middle of the road and thus was not keeping to the right of the center of the road as sec. 85.15 (1), Stats., requires, when he reached the top of the hill. Although he testified that on seeing the Ford he turned to the right and the front of his truck was at the outer edge of the shoulder when the collision occurred the jury might infer that its rear was still to the left of the center of the road. As to lookout and control, the case is not so clear, but we consider that the questions in this respect were also for determination by the jury under the circumstances in evidence.

[3] (2) It appears from the evidence that as the cars approached the top of the hill the speed of the Ford was greater than the speed of the truck. It also appears, as we shall hereinafter show, that Schulz was equally guilty with Lund in driving in the middle of the road. But it appears that Schulz applied his brakes and the jury might properly infer that he had brought his car nearly to a stop at the time of the impact. Lund did not apply his brakes. The jury might have properly inferred from this that Schulz's lookout and control were both better than those of Lund. It might perhaps be properly held that the finding that the proportionate negligence of Lund was to that of Schulz as 90 to 10 can not stand, and that a new trial on the question of comparative negligence should be directed on that ground if on no other, but as a new trial must be ordered on other grounds we need not concern ourselves with that. We consider that the question of comparative negligence was for the jury.

[4] (3) We consider that the finding of the jury that Schulz did not drive on his left side of the road can not be upheld. While some of the witnesses testify that the gouge in the road which marks the approximate position of the left front of the Ford at the moment of impact was a foot south of the center of the road, it can not be held that it fixes the precise spot of the impact in view of three undisputed physical facts which conclusively show the contrary. No one saw the collision...