Shortle v. Sheill
| Decision Date | 23 June 1920 |
| Citation | 178 N.W. 304,172 Wis. 53 |
| Parties | SHORTLE v. SHEILL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.
Action by Stella Shortle, administratrix, against Robert Sheill. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
Action to recover damages for death of plaintiff's husband, caused by defendant's negligence. Grand avenue is one of the principal streets in the city of Milwaukee, and runs east and west. Between Eighth and Eleventh streets on said Grand avenue is the so-called Court of Honor, consisting of a wide strip of raised ground through the center of the street, which is maintained as a lawn and covered with floral decorations. The east-bound traffic, including east-bound street cars, goes south of this strip, the west-bound traffic, including west-bound street cars, goes north thereof. This Court of Honor is not continuous from Eighth to Eleventh streets, but is intersected by the cross streets. In the center of the area designated by the intersection of Tenth street and Grand avenue is a massive stone structure, a monument to the Civil War veterans. The south-bound traffic on Tenth street goes west of this monument, the north-bound traffic east of it.
About 6 o'clock p. m. of the sixteenth day of November, 1916, the defendant, Robert Sheill, was driving his automobile west on Grand avenue on that portion thereof lying north of the Court of Honor and north of the monument referred to. Plaintiff's husband was driving a one-horse truck north on Tenth street, sitting on a high seat at the front end of the truck. Defendant's automobile collided with the rear wheel of the truck, throwing plaintiff's husband from his position on the truck, and causing the injuries from which death shortly resulted.
The following special verdict was returned by the jury: (1) That the deceased, Edward Shortle, in crossing Grand avenue at Tenth street, passed west of the monument; (2) that the deceased, Edward Shortle, was guilty of a want of ordinary care which proximately contributed to produce his injury; and (3) damages, $7,000. Upon motion made after verdict the court changed the answer of the jury to the second question from Yes to No, and ordered judgment in favor of plaintiff and against the defendant for the sum of $7,000 with costs. From the judgment so entered the defendant appealed.Raymond J. Cannon, of Milwaukee, for appellant.
Fish, Marshutz & Hoffman, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for respondent.
OWEN, J. (after stating the facts as above).
[1][2] A question is raised as to whether we have before us a bill of exceptions certified to contain all of the evidence. Such a certificate was absent from the bill of exceptions first transmitted to this court. After the receipt of the record here, the bill of exceptions was transmitted to the circuit court for correction. Under date of May 15, 1920, a new certificate was attached thereto, by which it was certified that the bill of exceptions contains all of the evidence given on the trial of said action. The record was again returned to this court, and filed on the 21st day of May, 1920. On May 27, 1920, the trial judge filed with the clerk of the circuit court a paper in the form of a certificate, wherein it is stated that the bill of exceptions signed by him on May 15th did not contain two certain exhibits offered upon the trial of said action, and did not contain the decision of the court that the negligence of the defendant which proximately contributed to the injury appeared by the undisputed evidence. The missing exhibits mentioned are attached to the certificate. This certificate, with attached exhibits, was transmitted to this court as a supplemental return, and filed on the 29th day of May, 1920. These latter documents did not become any part of the record in the case, and cannot be considered. Demier v. Durand, 15 Wis. 580. But even if they could be received as impeaching the integrity of the former bill of exceptions, the certificate itself points out the defects in the bill of exceptions, which appear to be of very little significance. The exhibits mentioned consist of a plat and photograph of the vicinity of the accident, which...
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