Wagner v. Larsen

Citation182 N.W. 336,174 Wis. 26
PartiesWAGNER v. LARSEN.
Decision Date05 April 1921
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Brown County; Henry Graass, Judge.

Action by Eugene K. Wagner against William Larsen. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages inflicted upon the person and automobile of plaintiff by reason of a collision with a coal sleigh, in the city of Green Bay. The defendant, Larsen, is engaged in several industrial businesses in the city of Green Bay, in which, from April to November, he has use for a number of teams and drivers. During the winter months his regular work does not furnish employment for such teams and drivers, and, in order to keep his organization intact, he hires his teams, drivers, and wagons to others.

The F. Hurlbut Company is a corporation engaged in the retail coal business in the city of Green Bay. A short time prior to the collision the defendant hired to F. Hurlbut Company a team, sleigh, and driver, named Lardinois, at a certain stipulated price per day, to be used by the Hurlbut Company in the delivery of coal. The Hurlbut Company had on previous occasions engaged similar help from defendant.

About 6:30 o'clock in the evening of January 4, 1917, Lardinois had completed the delivery of a load of coal pursuant to instructions from Hurlbut Company and had started for defendant's barn with a sleigh and team. He was driving north on Madison street, and plaintiff was going west on Crooks street. They collided at the intersection of Crooks and Madison streets. The evidence is not very clear as to how the collision occurred. The plaintiff, seemingly, had no idea as to how it occurred, and the testimony of Lardinois is exceedingly unsatisfactory. However, it appears from plaintiff's testimony that he was going west on Crooks street, which runs in an easterly and westerly direction, in a Buick roadster, inclosed with the ordinary isinglass curtains, driving at a moderate and lawful rate of speed on the right-hand side of the street within two or three feet of the curb. He testified that after he passed the intersection of Crooks and Madison streets, possibly a few feet, he does not know how far, it just appeared as though a house dropped on top of his car. He did not see anything in front of it, and, whatever it was, it took the windshield and top right off the car, broke the steering wheel and glass of the windshield, and rendered plaintiff unconscious for a few minutes.

Lardinois testified that he was driving north on Madison street, which runs in a northerly and southerly direction. He saw Wagner's car coming just before he hit the southeast line of the intersection of Madison and Crooks street; about at the crossing, he would judge. Mr. Wagner was then not more than 40 feet from him. He switched his horse east on Crooks street to avoid being hit. When he was hit his team was facing to the east on Crooks street at the intersection of Madison and Crooks streets, but he could not say whether he was over the center of the intersection or not. His sleigh tongue was struck by Mr. Wagner's car, and one horse was knocked down. He did not look to see what became of the automobile, but trotted his team up Madison street, and the next day he denied that he was in an accident when asked by the Hurlbut Company concerning the same. He paid for the broken sleigh tongue, upon the demand of Larsen, owner of the sleigh.

By special verdict the jury found that Lardinois was guilty of negligence, that the plaintiff was free from negligence, and that the former was not a servant or employé of the Hurlbut Company in the driving or the handling of the team and sleigh. Judgment was rendered in favor of the plaintiff, and the defendant brings this appeal.

Silverwood, Fontaine & McCreery, of Green Bay, for appellant.

Minahan, Minahan, Minahan & Duquaine, of Green Bay, for respondent.

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

[1][2] It is strenuously argued on the part of the appellant that the plaintiff was guilty of contributory negligence. Diagrams are presented and distances are delineated thereon to indicate that the plaintiff could have seen defendant approaching when he was upwards of 200 feet east of Madison street, the conclusion being that had he exercised care he would have seen the approaching team and avoided the accident. There is no evidence that the plaintiff was driving at an excessive rate of speed. There is evidence from which the jury might have found that he was traveling where he had a right to travel, namely, on the right side of the street in close proximity to the curb. He had the right of way over the team going north on Madison street. Even though he had seen a team approaching, as he had the right of way he had no reason to assume that Lardinois would drive the team into his automobile. The answer to defendant's argument in this respect is, even though plaintiff had seen the team approaching, he was under no obligation to yield the right of way nor to assume that Lardinois would not stop and yield the right of way to him.

Upon the meager facts concerning the cause of this collision it was plainly a jury question. The evidence was abundant to show negligence on the part of Lardinois, and the jury was plainly justified in exonerating the plaintiff of any negligent conduct. Not only the testimony of Lardinois but his subsequent actions are strongly indicative of guilt. He did not pause to see what had become of the automobile. He made no effort to find out who the owner was. He did not even notice that the automobile had collided with a tree. He proceeded at a smart pace on his way. He paid for the broken sleigh tongue upon demand without protest. He denied having been in a collision when questioned by the Hurlbut Company. It is plain that the verdict of the jury in this respect cannot be disturbed.

[3] The important question in the case is whether the defendant is liable for...

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25 cases
  • Cox v. Dempsey
    • United States
    • United States State Supreme Court of Mississippi
    • January 11, 1937
    ...... represents, not merely in the ultimate result of the work,. but in the details. . . 39 C. J. 33, 1274, 1277; Wagner v. Larsen, 174 Wis. 26,. [177 Miss. 682] 182 N.W. 336; Donovan v. Laing, etc.,. Constr. Syndicate, Ltd., 1 Q. B. 629; Peach v. Bruno, 224 ......
  • O'Brien v. Rindskopf, 31536.
    • United States
    • United States State Supreme Court of Missouri
    • April 19, 1934
    ...Co. (Iowa), 133 N.W. 888, 38 L.R.A. (N.S.) 973; L.R.A. 1918E, 121.] In one of the best considered cases we have found, Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336, the law is stated thus: "Where an owner hires his team and driver, or his automobile and chauffeur, or his machine and operator......
  • Nepstad v. Lambert, 35341
    • United States
    • Supreme Court of Minnesota (US)
    • August 3, 1951
    ...v. Elam, 145 Tex. 437, 198 S.W.2d 94; McFarland v. Dixie M. & E. Co., 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516. See, Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336, where defendant rented his team, sleigh, and driver to a coal company to be used in making deliveries. It was held that the dri......
  • O'Brien v. Rindskopf
    • United States
    • United States State Supreme Court of Missouri
    • April 19, 1934
    ......888, 38 L. R. A. (N. S.) 973; L. R. A. 1918E, 121.]. . .          In one. of the best considered cases we have found, Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336, the law is stated. thus: "Where an owner hires his team and driver, or his. automobile and chauffeur, or ......
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