VoLkmann v. Fid. & Cas. Co. of N.Y.

• Decision Date: 11 May 1948
• Citation: 252 Wis. 464,32 N.W.2d 348
• Court: Wisconsin Supreme Court
• Parties: VOLKMANN et al. v. FIDELITY & CASUALTY CO. OF NEW YORK et al.

252 Wis. 464

32 N.W.2d 348

VOLKMANN et al.

v.FIDELITY & CASUALTY CO. OF NEW YORK et al.

Supreme Court of Wisconsin.

May 11, 1948.

Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Judge.

Affirmed.

Action commenced September 10, 1942, by John Volkmann, Jr., by John H. Volkmann, his guardian ad litem, and John H. Volkmann, in his individual capacity, plaintiffs, against Fidelity & Casualty Company of New York, a foreign insurance corporation, Student Transportation Company, a corporation, and Ervin C. Pree, defendants, to recover damages sustained as a result of John Volkmann, Jr. bring struck by a bus of Student Transportation Company operated by its employee, Ervin C. Pree. The case was tried to the court and a jury, and a special verdict rendered. The court granted a new trial in the interests of justice and because the verdict returned by the jury was perverse. Plaintiffs appeal from the order granting a new trial.

Arlo McKinnon, of Milwaukee, for appellants.

Bendinger, Hayes & Kluwin, of Milwaukee, for respondents.

BARLOW, Justice.

Upon a prior hearing of this case, reported in 248 Wis. 615, 22 N.W.2d 660, the material facts are fully set forth and reference is made to them without restating them in this opinion. A new trial was there ordered. On retrial the court answered the third question of the special verdict by finding as a matter of law that plaintiff was guilty of negligence in failing to yield the right of way to the defendant. The jury found plaintiff guilty of negligence in failing to keep a proper lookout, and then found that neither act of negligence was an efficient cause of the collision. Thus by its answers the jury found there was no negligence on the part of the plaintiff which was causal and found the defendant driver guilty of causal negligence in the management and control of his bus. In answering question No. 7, where the jury was requested to find the percentage of all negligence which was an efficient cause of the collision attributable to each party, the jury attributed 15% to the plaintiff and 85% to the bus driver.

Appellants contend there was credible evidence to sustain the finding of the jury that the child's negligence was not a proximate cause of his injury and the court was therefore in error in granting a new trial. The trial court, in its memorandum opinion, points out that the duty imposed on the boy to yield the right of way between intersections was absolute and this boy was crossing the street between...