Smith v. Flash City Transit Co., Division of Racine Flash Cab Co.

Citation225 N.W.2d 481,66 Wis.2d 595
Decision Date04 February 1975
Docket NumberNo. 293,293
PartiesHarvey L. SMITH et al., Respondents, v. FLASH CITY TRANSIT CO., DIVISION OF RACINE FLASH CAB CO., et al., Appellants.
CourtUnited States State Supreme Court of Wisconsin

Plaintiff-respondent, Helen M. Smith, commenced this action against defendant-appellant, Flash City Transit Company, a Wisconsin corporation, and its insurance carier, Old Republic Insurance Company, a foreign corporation, for personal injuries. Plaintiff-respondent, Harvey L. Smith, her husband, sought recovery for medical expenses incurred and for the loss of society and services of his wife. Both claims derived from the incident, occurring on November 13, 1968, when plaintiff-respondent, Helen Smith, fell down in a minibus operated by defendant-appellant, Flash City Transit Company. The minibus, traveling west on Washington Avenue in Racine, was approaching the Grove Avenue intersection when an automobile making a left-hand turn cut in front of the bus causing the driver to apply the minibus brakes forcefully, stopping the bus three or four feet from the turned or turning automobile. The plaintiff-respondent, Helen Smith, standing near the rear door of the minibus and holding onto a bar, fell or was thrown to the floor of the bus, sustaining injuries.

The case was submitted to a jury on June 22, 1972, and a verdict was returned in favor of defendants. In answer to the special verdict questions, the jury found that the bus driver was not negligent in the operation of the minibus and that plaintiff was not negligent with respect to her own safety. No jury finding was made as to causation. On motions after verdict, the trial court held that the bus driver was negligent as a matter of law in failing to keep a proper lookout and in failing to exercise ordinary care for the safety of his passengers. The trial court changed the jury's answer of 'No' as to negligence of the bus driver to 'Yes,' and answered 'Yes' to the question, unanswered by the jury, as to whether such negligence caused plaintiff's injuries, apportioning 100 percent of the negligence to the defendants. Judgment was accordingly entered on January 16, 1973, and defendant appeal.

Edward P. Rudolph, Milwaukee, for appellants.

Weber & Gerard, Racine, for respondents.

ROBERT W. HANSEN, Justice.

The primary issue on this appeal is whether the trial court erred in changing the jury's special verdict answer as to the bus driver's negligence from 'No' to 'Yes.' Before submitting the case to the jury, and in discussing proposed instructions to the jury, the trial court said:

'Well, as I recorded the testimony of the bus driver, Mr. Dixon, he testified that he first saw the vehicle which he said crossed in front of him when it was in front of him with his (the) front bumper at the curbline waiting for pedestrians to pass in front of him, which would mean that that car was in the exact position and across his lane of travel in part which would mean that the car was at least 15 feet in length . . . (and) would have been in that position as he was coming down the street, and not to see it until he was right on top of it would give rise to an argument on look-out. He also did, however, express another theory that he first saw it when he was coming toward him with his front end on the driver's side of his vehicle and it passed in front of him and stopped. The jury has heard both, or has heard complete testimony. It will be up to them to evaluate and pass upon with respect to credibility. . . .'

With the only evidence offered on the issue of the driver's lookout being testimony of the bus driver himself, there was, as the trial court indicated, testimony on which a finding of negligence as to lookout could be based. The bus driver testified that:

'Q Well, where was that car when you first saw it?

'A In front of me.

'Q In front of you?

'A Right.

'Q Now, at the time you first saw it, where was this car with respect to the south--with respect to the north curb line of Washington Avenue? Do you know what I mean by the north curb line? Where was the front of this car with respect to the north curb line when you first saw it?

'A Right at the curb.

'Q So it was at the curb?

'A The front end.

Accepting this testimony, the jury could have concluded that the bus driver did not see the other vehicle at any time prior to its front end being at the north curbline of Washington Avenue, where the vehicle was in a stopped position. So accepting and so concluding, the jury would find the conclusion compelled that the bus driver was negligent as to lookout. But such was not the only testimony before the jury. What the trial court, at the time of considering jury instructions, termed 'another theory' is a reference to testimony of the bus driver as follows:

'Q If I draw the front end in this way would this be the way it was at the time you first saw it?

'A Yes, sir, that is when I saw him, when he pulled right in front of me.

'Q When he was at the curb the front of his--

'A When he stopped he was right at the curb.

'Q My question is where was that car when you first observed it?

'A First observed it, he was turning in front of me.

'Q All right. Now, where was he, I didn't ask you what he was doing, but where was he at the time you first observed him?

'A In front of me.

'Q In front of you?

'A Yes.

'Q All right. Where was the front end of his car with respect to this north curb line at the time you...

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3 cases
  • Wyandotte Chemicals Corp. v. Royal Elec. Mfg. Co., Inc.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 4, 1975
    ......Housing Authority of the City of Madison (1972), 54 Wis.2d 22, 194 N.W.2d 618, ......
  • Bastman v. Stettin Mut. Ins. Co. of Marathon County
    • United States
    • United States State Supreme Court of Wisconsin
    • December 4, 1979
    ...verdict on the ground that it must be changed as a matter of law '. . . will be set aside on appeal.' " Smith v. Flash City Transit Co., 66 Wis.2d 595, 600, 225 N.W.2d 481, 483 (1975); See also May v. Skelley Oil Co., 83 Wis.2d 30, 35, 264 N.W.2d 574 The sole issue presented by the parties ......
  • Grutzner v. Kruse, 77-604
    • United States
    • Court of Appeals of Wisconsin
    • November 22, 1978
    ...a jury's verdict on the ground that it must be changed as a matter of law will be set aside on appeal. Smith v. Flash City Transit Co., 66 Wis.2d 595, 600, 225 N.W.2d 481 (1975). We cannot say that the jury's finding that a jaywalking pedestrian was more negligent than a motorist turning at......

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