Trautmann v. Charles Schefft & Sons Co.

• Decision Date: 07 January 1930
• Citation: 228 N.W. 741,201 Wis. 113
• Court: Wisconsin Supreme Court
• Parties: TRAUTMANN v. CHARLES SCHEFFT & SONS CO. ET AL.

201 Wis. 113

228 N.W. 741

TRAUTMANN

v.CHARLES SCHEFFT & SONS CO. ET AL.^a1

Supreme Court of Wisconsin.

Jan. 7, 1930.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Circuit Judge. Affirmed in part; reversed with directions.

Action begun March 28, 1927. Judgment entered May 4, 1929.

Action to recover damages sustained by Raymond Trautmann, a minor. From a judgment for plaintiff for the recovery of $7,689.32 from the defendants, both appealed.

Raymond Trautmann, while riding a bicycle south on Ninth street, near Hadley street, in the city of Milwaukee, was injured when, in the intersection of those streets, an Essex automobile driven by Morris Krell, deceased, collided with a Ford truck belonging to the defendants Charles Schefft & Sons, and the rear end of the truck was shoved around and struck Raymond Trautmann. Raymond Haasch, an employee of the Schefft corporation, was driving the truck. Raymond Trautmann was not negligent.

Upon the trial the court found that both Krell and Haasch were driving in excess of the statutory speed limit of 15 miles per hour, as they approached the place of collision. The jury, in a special verdict, found that Krell was negligent in respect to (1) keeping a proper lookout; (2) his control of his automobile; and (3) yielding his right of way to Haasch; and that his negligence in each of those respects, and also his driving in excess of 15 miles per hour, was the proximate cause of plaintiff's injury.

As to Haasch, the jury found that he was not negligent in respect to (1) keeping a proper lookout, or (2) controlling the truck, or (3) yielding the right of way to Krell; and further found that his driving in excess of 15 miles per hour was not a proximate cause of plaintiff's injury.

On motions after verdict, the court approved the jury's findings in relation to Krell, and ordered that plaintiff was entitled to recover thereon from the estate of Krell, who had died prior to the trial. As to Haasch, on motions after verdict, the court changed the answers of the jury in relation to Haasch's alleged negligence, so as to find that he was negligent in respect to (1) keeping a proper lookout, (2) controlling the truck, and (3) yielding the right of way to Krell; and further found that negligence of Haasch in each of those respects, as well as his driving in excess of 15 miles per hour, was a proximate cause of plaintiff's injury. Upon the verdict as thus changed by the court in relation to Haasch's conduct, the court then ordered that plaintiff was also entitled to recover from Haasch's employer, the defendant corporation. Accordingly, judgment was entered for the recovery by the plaintiff from both defendants of $7,500, assessed as plaintiff's damages by the jury.

Hoyt, Bender, Trump, McIntyre & Hoyt and Schoetz, Williams & Gandrey, all of Milwaukee, for appellants.

McGovern, Curtis, Devos & Reiss, of Milwaukee, for respondent.

FRITZ, J.

On this appeal, the principal contention of the defendant corporation is that the court erred in changing the answers of the jury as hereinbefore stated, and then ordering judgment thereon against it. The administrator of Krell's estate contends that the jury's assessment of damages is excessive, and that the judgment was proper in so far as it provided for recovery from both defendants.

The rule is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence, which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is a question for the jury, should be firmly adhered to, and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned. Reul v. Wis. N. W. Ry. Co., 166 Wis. 128, 163 N. W. 189;Wiesman v. Am. Ins. Co., 184 Wis. 523, 199 N. W. 55, 200 N. W. 304;Henry v. LaGrou (Wis.) 227 N. W. 246. Under that rule, on the appeal of the defendant corporation, the problem is not the broader question of whether the findings of the learned circuit judge are more warranted by the evidence than the answers of the jury, but the inquiry is limited to the narrow issue of whether there is any credible evidence which, under any reasonable view, will admit of inferences which may have been drawn by the jury in finding that Haasch was not guilty of any negligence which was a proximate cause of injury to plaintiff. In other words, the inquiry on this appeal is solely whether there is any credible evidence reasonably admitting of inferences favorable to the contention of the defendant corporation, because of which the jury, proceeding properly, could find that Haasch's driving in excess of 15 miles per hour was not a proximate cause of plaintiff's injury, and that he was not negligent in respect to (1) keeping a proper lookout, (2) properly controlling the truck, or (3) yielding the right of way.

The credible evidence reasonably admits of the following inferences: The impact occurred upon the right end of the front bumper of Krell's car striking the truck's right rear wheel, when the rear of the truck was within 6 feet of the north crosswalk, and near the center line of Ninth street. Krell was driving west on Hadley street, and Haasch was going north on Ninth street. When the truck was on the south crosswalk, which was approximately 30 feet south of the point of impact, Haasch slowed down to about 15 miles per hour, and looked eastward and saw Krell's car approaching. In view of what he then observed, Haasch then...