Sichling v. Nash Motors Co.

• Decision Date: 10 November 1931
• Citation: 238 N.W. 843,207 Wis. 16
• Parties: SICHLING v. NASH MOTORS CO. ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

207 Wis. 16

238 N.W. 843

SICHLING

v.NASH MOTORS CO. ET AL. (TWO CASES).

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from an order of the Circuit Court for Racine County; S. E. Smalley, Circuit Judge Presiding.

Two actions, one by Delbert Sichling, an infant, by guardian ad litem, and the other by Earl E. Sichling, against the Nash Motors Company and others. From an order granting plaintiffs' motion for new trial, defendants appeal.--[By Editorial Staff.]

Affirmed.

Actions begun May 3, 1930; order entered February 6, 1931. Personal injuries caused by collision with an automobile. This action was begun to recover for injuries to the plaintiff Delbert Sichling, due to a collision with an automobile on November 20, 1929. The cases of the father and the injured minor were tried together and the jury returned a special verdict as follows:

“Special Verdict.

1. Did Louis Spaay, driver of the Nash truck and trailer, fail to exercise such care as the great mass of mankind ordinarily exercises when acting under the same or similar circumstances:

(a) With reference to speed? Answer: Yes.

(b) With reference to the lookout maintained by him? Answer: No.

(c) With reference to his control of the truck and trailer? Answer: No.

2. If you answer any subdivision of question 1 ‘Yes', then answer this question: Was the injury to Delbert Sichling a natural and probable result of such want of ordinary care on the part of Louis Spaay:

(a) With reference to speed? Answer: No.

(b) With reference to the lookout maintained by him? Answer: No.

(c) With reference to his control of the truck and trailer? Answer: No.

3. If you answer any subdivision of question 1 ‘Yes,’ then answer this question: Ought Louis Spaay as a person of ordinary intelligence and prudence reasonably to have foreseen that injury to a traveler upon the highway in question might probably follow from such want of care on his part:

(a) With reference to speed? Answer: Yes.

(b) With reference to the lookout maintained by him? Answer: No.

(c) With reference to his control of the truck and trailer? Answer: No.

4. Did the plaintiff, Delbert Sichling, fail to exercise such care as the great mass of children of his age, capacity, knowledge and experience ordinarily exercises when acting under the same or similar circumstances:

(a) With reference to lookout? Answer: No.

(b) With reference to heedlessly submitting himself to danger? Answer: No.

5. If you answer any subdivision of question 4 ‘Yes' then answer this question: Was plaintiff's injury a natural and probable result of such want of ordinary care on his part:

(a) With reference to lookout? Answer: ______.

(b) With reference to heedlessly submitting himself to danger? Answer: ______.

6. If you answer any subdivision of question 4 ‘Yes', then answer this question: Ought the plaintiff, Delbert Sichling, as a child of ordinary intelligence and prudence for his age reasonably to have foreseen that injury to himself might probably follow from such want of ordinary care on his part:

(a) With reference to lookout? Answer: ______.

(b) With reference to heedlessly submitting himself to danger? Answer: ______.

7. At what sum do you assess the damages of plaintiff, Delbert Sichling? Answer: $25,000.00.

8. At what sum do you assess the damages of plaintiff, Earl E. Sichling? Answer: $5,000.00.”

Motions after verdict were argued by counsel, and the court said:

“The questions involved in this case are, in the opinion of the court, close questions, as to whether or not negligence is established as against the driver of the truck. But the Court is not convinced in his own mind that the verdict properly disposes of the issues in this case.

I have given the case considerable thought since the trial, and the Court, of course, must be convinced that Justice has been done or a new trial should be granted. I would not feel that I had done my duty as a judge in this case if I finally disposed of it by granting judgment on this verdict. If I did, it would have to be for the defendant and dismissing the plaintiff's complaint.

I am of the opinion that the verdict as returned is inconsistent and somewhat conflicting and does not determine the issues involved in this case. Because of that, and in the interests of Justice, I think it is my duty to grant a new trial to the plaintiff, which I do, without costs.”

Subsequently, by order of the court, there were included in the record two paragraphs which should immediately precede what has been quoted, as follows:

“I believe that the questions produced at the trial were for the jury. Now a trial judge has got to be satisfied in his own mind that he is giving the parties an opportunity to present everything they have and to try the case out and have it submitted to the jury and a verdict returned that convinces the Court that it has been decided in a way that removes all doubt as to whether or not the questions have been decided by this verdict.

I am not satisfied with this verdict. It does not convince me that it is decisive of the questions involved in the case. It seems to me that the parties are entitled to a clearer cut verdict than they got. If the defendant's driver is not negligent in any respect, the defendant is entitled to a clear verdict. It may be that on a retrial the questions can be formed that will require the jury to find a little more clearly than they did. I would not be satisfied in my own mind that I have done my duty if I directed a verdict in this case. I therefore, set aside the verdict and grant a new trial on the ground that the verdict is not...