VoLland v. McGee
| Decision Date | 04 November 1941 |
| Citation | 300 N.W. 506,238 Wis. 598 |
| Parties | VOLLAND v. McGEE et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Shawano County; Henry A. Graass, Judge.
Reversed.
Action commenced January 6, 1939, by Harold Volland against William McGee and his insurance carrier, the Saint Paul Mercury Indemnity Company, for damages resulting from an automobile collision. The defendant McGee interposed a counterclaim against plaintiff and cross complained against the interpleaded defendant, the American Automobile Insurance Company. The judgment dismissed the action and all claims. Plaintiff appeals.
The collision occurred early in the morning of December 13, 1938, on Highway 47. Plaintiff was driving south and defendant north. The two cars collided in the west lane of travel of the road on the inside of a curve where the highway which runs in a general north and south direction curves toward the northwest. The weather conditions were favorable but the roadway was icy and there was a slight downward slope toward the north on the curve. The highway was banked somewhat so as to be lower on the west side. The plaintiff was thus traveling up a slight grade as he approached the point of collision. Defendant's car turned crosswise of the road facing west and was struck on its right side by the front of plaintiff's automobile.
Defendant testified that he turned his car into the west lane because he thought plaintiff was on the wrong side of the road and that he turned to avoid what he thought would be a head-on collision. The evidence showed that defendant was on his side of the road until but 50 feet from the point of the accident and that he suddenly swung over to his left in front of the plaintiff. Skid marks extended in an arc from the east side of the highway over to the point on the west side where the collision took place. The plaintiff's version is that he applied his brakes as soon as he saw the defendant crosswise in front of him but that he was unable to stop before running into defendant's car.
A trial was had to the court and jury. A special verdict was rendered in which the findings are that plaintiff was guilty of negligence as to speed and that such speed was a natural cause of the accident; that defendant was negligent in operating his automobile on the left side of the highway and that such negligence was a natural cause of the accident. The negligence of each party was assessed at 50 per cent. Judgment was entered on December 28, 1939, dismissing plaintiff's complaint and defendant's counterclaim and cross complaint.
Fischer, Brunner & Strossenreuther, of Shawano (Eberlein & Eberlein, of Shawano, of counsel), for appellant.
Genrich & Genrich, of Wausau (Herbert L. Terwilliger, James A. Fitzpatrick, and William J. Hoffmann, all of Wausau, of counsel), for respondents.
[1][2] After judgment of dismissal had been ordered by the circuit court a motion by appellant to set aside the judgment and for a new trial was granted below. That order was not effective as the trial court could not set aside the verdict and grant a new trial after 60 days had elapsed from the rendering of the verdict, no extension of time for cause having been granted. This is a fixed rule provided by sec. 270.49(1), Stats. On appeal from the order that matter was considered by this court in Volland v. McGee, 236 Wis. 358, 294 N.W. 497, 295 N.W. 635, and another question of practice was raised in 238 Wis. 227, 298 N.W. 602. The case is now before us on appeal from the judgment of December 28, 1939. Appellant assigns as error instructions to the jury with relation to the speed at which he should have been travelling. He also claims to be entitled to judgment notwithstanding the verdict; and to a change of answers of the special verdict and for judgment on the verdict as so amended. So one question presented is whether appellant's case was properly placed before the jury. This depends upon the correctness of the...
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