Schwab v. Martin

• Decision Date: 17 May 1938
• Citation: 228 Wis. 45,279 N.W. 699
• Parties: SCHWAB v. MARTIN et al.
• Court: Wisconsin Supreme Court

228 Wis. 45

279 N.W. 699

SCHWAB

v.MARTIN et al.

Supreme Court of Wisconsin.

May 17, 1938.

Appeals from a judgment of the Municipal Court of Outagamie County; Thomas F. Ryan, Judge.

Reversed in part; affirmed in part.

This was an action commenced on June 8, 1937, by Max A. Schwab, plaintiff, against Bernard Martin, George M. McElroy, Employers Mutual Indemnity Corporation, a corporation, and Dovey Watson, defendants, to recover damages for personal injuries sustained in an automobile collision when a car driven by defendant McElroy and in which plaintiff was a guest collided with one driven by defendant Watson and which had been loaned to defendant Martin by his brother for the purpose of taking the trip. Plaintiff's complaint alleged that defendant Watson was agent for Martin in driving what will hereafter be designated as the Martin car. Various allegations of negligence on the part of defendants Watson and McElroy were set forth in the complaint. The answer of defendant McElroy put in issue all allegations of negligence as to him and alleged that the collision and injuries to plaintiff were solely caused by the negligence of Martin and Watson. The answer of defendant Martin denied that he was the driver of the automobile, denied all acts of negligence ascribed to him, and asserted that the accident was caused by the negligence of defendant McElroy. Martin also filed a cross-complaint against McElroy setting forth the same acts of negligence as those asserted by plaintiff and demanding judgment for personal injuries sustained by him in the accident. The answer of McElroy to the cross-complaint of Martin denied all allegations of negligence. In addition, McElroy filed a cross-complaint against defendant Watson. Defendant Watson defaulted. The action was tried to the court and a jury, and a special verdict was submitted and returned. With respect to defendant Watson, it was found that she failed to maintain a proper lookout; that she was not guilty of operating her automobile at excessive speed; that she was negligent (a) with respect to control and management, (b) in operating her automobile to the left of the center of the highway in meeting another vehicle, (c) in failing to grant one-half of the traveled portion of the road to the defendant McElroy; and (d) in operating the car while under the influence of liquor. The acts of negligence were found to be causes of the collision. Defendant McElroy was found to have maintained a proper lookout and not to have operated his automobile at an excessive rate of speed. He was, however, found guilty of negligence in failing to maintain proper control and management of his automobile, operating the automobile to the left of the center of the highway on meeting another vehicle, and in failing to yield one-half of the traveled portion of the highway to the automobile of defendant Watson. The last two items of negligence were found to be causes of the collision. The subdivision of the question on cause which related to control and management was not answered by the jury. The jury assessed plaintiff's damages at $6,767.13, and those of defendant Martin at $1,168.50. The negligence of defendant Watson was assessed at 66 per cent., and that of George McElroy at 33 1/3 per cent. Upon motions after verdict the trial court supplied the answer “yes” to the question on causation which the jury had failed to answer, and ordered judgment for plaintiff against all of the defendants. Motion was also granted dismissing the cross-complaint of defendant Martin. Defendants McElroy and Martin appeal. The material facts will be stated in the opinion.Bouck, Hilton, Kluwin & Dempsey, of Oshkosh, for appellants.

M. J. Paul, of Berlin, for defendants.

Bradford, Bradford & Derber, of Appleton, for respondent.

WICKHEM, Justice.

Plaintiff is a salesman living in the city of Appleton. On the day of the accident he was a guest in a Ford panel body type of automobile owned by one Hopfesberger and driven by defendant McElroy. For convenience this car will hereafter be referred to as the McElroy car. On the evening of December 14, 1935, Arthur Hopfensperger, Mike Judkins, George M. McElroy, and Max Schwab, the plaintiff, arranged a rabbit hunting trip for the next day, which was Sunday. It snowed approximately 3 inches during the evening of the 14th. The party left on the trip about 6 o'clock in the morning and had their day of hunting. About 4 o'clock the party gathered at the truck or car and started for Appleton. On the return trip McElroy drove the automobile with the consent of its owner. Plaintiff Schwab sat on the front seat with him and the other two members of the party sat in the rear on improvised seats. McElroy drove the car to U. S. highway 10 and proceeding thereon in a southeasterly direction drove toward Appleton. During the day the snow had become frozen and the road was slippery. The headlights of the car were lighted and the car proceeded at a speed which gave rise to no crises or incidents until shortly before the accident. The collision occurred on highway 10 a short distance east of the junction of this highway with state highway 49. At the place of the accident highway 10 runs approximately east and west. Highway 49 runs approximately north and south. The highways converge at a junction known as Sunset Curve and continue northerly to Weyauwega and Waupaca. At the point of the accident highway 10 is built 3 1/2 to 4 feet above the leval of a marsh, has no shoulders, is 19 feet wide, and has a curb approximately 9 inches high on each side. The Martin car was proceeding in a westerly direction along highway 10 and collided with the McElroy car. Defendant Watson was a resident of Arkansas who had come to Berlin in 1935. She and defendant Martin attended a dance at West Bloomfield Saturday night, December 14. The next morning Martin made a call upon Mrs. Watson and shortly thereafter had breakfast with her at the tavern. Martin and Mrs. Watson drove to Eureka, stopped at a tavern, and had some...