Tomasik v. Lanferman

• Decision Date: 10 November 1931
• Citation: 206 Wis. 94,238 N.W. 857
• Parties: TOMASIK v. LANFERMAN.
• Court: Wisconsin Supreme Court

206 Wis. 94

238 N.W. 857

TOMASIK

v.LANFERMAN.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court for Milwaukee County; S. E. Smalley, Circuit Judge. Affirmed.

Action by Michael Tomasik, plaintiff, commenced on the 9th day of December, 1930, against R. H. Lanferman, defendant, to recover damages for personal injuries. From a judgment in favor of the plaintiff entered on the 11th day of April, 1931, the defendant appeals.Sanders & McCormick, of Milwaukee (E. J. Herte, of Milwaukee, of counsel), for appellant.

Gold & McCann, of Milwaukee, for respondent.

OWEN, J.

On the 29th day of June, 1929, the plaintiff was an employee of the Gridley Dairy Company, in the city of Milwaukee. About 1:30 a. m. of that day he was delivering milk to the patrons of the company on the Bluemound highway in said city. His milk wagon was proceeding east on the south side of the highway and in close proximity to the curb. A tourist going west on the Bluemound highway brought his car to a stop on the north side thereof, and crossed the street to the milk wagon to make inquiries of the plaintiff. He engaged in conversation with the plaintiff. While so engaged, the tourist at least was standing on the pavement on the left-hand side of the wagon. The plaintiff was standing either in the door of the wagon, or upon the wagon, or upon the pavement, on the left-hand side of the wagon in close proximity thereto. While thus engaged in conversation, the defendant approached with his automobile from the west, on the south side of the Bluemound highway, crashed into the milk wagon, and knocked the plaintiff to the pavement, causing serious physical injuries.

This action was brought by the plaintiff to recover damages. The complaint alleged two causes of action, one based upon gross negligence and one upon ordinary negligence. The court submitted both degrees of negligence to the jury, instructing them that, if they found the defendant guilty of gross negligence, they need not answer the questions relating to ordinary negligence. The court did not submit the question of plaintiff's contributory negligence to the jury. The jury found the defendant guilty of gross negligence, and assessed damages in the sum of $24,250. Upon motion after verdict the court granted a new trial, unless within twenty days plaintiff should consent in writing to a reduction of the jury's assessment of damages to the sum of $15,000, which the court stated to be the lowest amount at which a jury, properly instructed, would probably assess the damages. The plaintiff filed such consent in writing, and judgment was entered for $15,000.

[1][2][3] It is contended that there is no evidence in the case to sustain the finding of gross negligence. The evidence relied upon by the plaintiff to establish gross negligence justifies the conclusion that the defendant was driving his automobile in an intoxicated condition. There was practically no traffic on the highway at the time of the accident. The road was forty feet in width. The milk wagon was well supplied with lights. There were two lights on the inside of the wagon which could be seen through an open door in the rear. There were two lights on the outside and one under the wagon. The evidence justifies the conclusion that the defendant was driving at a high rate of speed and did not see these lights. The defendant admits that he did not see either the wagon or the lights until he was within six or eight feet of it.

The evidence further discloses that the defendant had been attending a party at the “Golden Pheasant,” a roadhouse on the Bluemound road, which party commenced about 9:30 of that night. Gin was drunk at the party, although defendant claims he drank none of it. The evidence justifies the conclusion that there was a bottle containing gin in his car at the time of the accident. A number of witnesses testified that the defendant was under the influence of liquor immediately after the accident. Two witnesses testified that, when they arrived upon the scene and asked what was the cause of the accident, he (the defendant) replied, “Who the hell cares.” The evidence was sufficient to warrant the jury in concluding that the defendant was driving the car while he was intoxicated, and, if so, the finding of gross negligence should not be disturbed. We hold that the driving of a car upon our highways by one intoxicated fully responds to all of the elements necessary to constitute gross negligence. One intoxicated is without proper control of all those faculties the exercise of which is necessary to avoid danger to others while driving a car upon a public highway. The driving of a car by one in such condition...