Sullivan v. Lutz

• Decision Date: 05 June 1923
• Citation: 194 N.W. 25,181 Wis. 61
• Parties: SULLIVAN v. LUTZ.
• Court: Wisconsin Supreme Court

181 Wis. 61

194 N.W. 25

SULLIVAN

v.LUTZ.

Supreme Court of Wisconsin.

June 5, 1923.

Appeal from Circuit Court, Portage County; Byron B. Park, Judge.

Action by J. B. Sullivan against Henry Lutz, wherein defendant counterclaimed. From judgment dismissing complaint and counterclaim, plaintiff appeals. Affirmed.

Automobile accident. This action was begun by the plaintiff to recover damages sustained to his automobile by reason of a collision between his car and a car owned by the defendant. The accident occurred on the 10th of November, 1921, at a point on highway No. 10, about 4 1/2 miles south of the city of Stevens Point. The defendant was traveling south. In front of him was a Ford sedan proceeding in the same direction. Ahead of the Ford sedan was a horse and wagon going south. The plaintiff was coming from the south, traveling north, and, as the defendant turned out to go by the Ford sedan, the plaintiff was distant approximately 250 feet. When the defendant turned out to go by the Ford sedan, the entire situation was for the first time revealed to him. Prior to that time he did not know of the presence of the horse and wagon nor of the approach of the plaintiff from the south. The defendant was driving an Elcar, weighing about 3,000 pounds. The speed of the various cars is estimated at from 18 to 25 miles an hour. When the exact situation was revealed to the defendant, he turned to the right to take his place on the right side of the highway between the wagon and Ford sedan, which had slowed down. He proceeded a short distance, estimated at 50 feet, and then attempted to stop his car, when it skidded. In skidding it turned across the highway, so that at the time the collision occurred the front end of defendant's car was over the center line of the street, and in the course of the accident the wagon was struck. The plaintiff's car coming from the south had been turned to plaintiff's right to avoid a collision, came in contact with the defendant's car, and the injuries complained of resulted.

The jury found no cause of action for either party, the defendant having counterclaimed for damages. The defendant claiming that plaintiff was guilty of negligence, the controversy was submitted to the jury in the form of three special verdicts. By the first form, if they found for the plaintiff, they were to so report and assess the damages. By the second form, if they found for the defendant, they were to so report and assess his damages. The third form was as follows:

“We, the jury in the above-entitled action, find against the plaintiff that he has no cause of action against the defendant. We further find against the defendant on his counterclaim that he has no cause of action against the plaintiff.”

This was the verdict adopted by the jury. The instructions of the court were such as to make these verdicts in effect general verdicts; that is, in order to find for the plaintiff, they were instructed that they must find that plaintiff was free from contributory negligence and defendant was negligent; in order to find for the defendant, they must find that the defendant was free from contributory negligence, and plaintiff was guilty of negligence. In regard to the third form of verdict, they were given the appropriate instructions as to negligence and contributory negligence. Upon the coming in of the verdict the matter was fully argued before the court, there was a judgment dismissing the complaint and counterclaim, and a judgment in favor of the defendant for costs and disbursements. From that judgment the plaintiff appeals.W. E. Atwell, of Stevens Point, for appellant.

Geo. B. Nelson, of Stevens Point, for respondent.

ROSENBERRY, J. (after stating the facts as above).

[1] It is contended by plaintiff that the court erred in not...