Walker v. Pomush
| Decision Date | 10 November 1931 |
| Parties | WALKER v. POMUSH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Superior Court of Douglas County; Archibald McKay, Judge.
Action by T. R. Walker against I. L. Pomush. Judgment for the plaintiff, and the defendant appeals.--[By Editorial Staff.]
Affirmed.
Action commenced May 5, 1930; judgment for plaintiff entered March 12, 1931. Defendant appeals.
The plaintiff sues to recover for injuries alleged to have been caused by the negligence of the defendant in driving his automobile. The plaintiff was the conductor of a street car, and, when injured, was flagging his motorman to cross a series of railway tracks. He had crossed the tracks ahead of his street car just after a train had passed which held up three street cars and several automobiles, one of which was driven by the defendant. After making his observations, the plaintiff turned to signal, and had just completed the act when he was struck by the defendant's automobile. The street car and the defendant were both going south. From the evidence the jury might properly infer that the defendant turned his automobile in ahead of the street car, and was partially on the street car tracks when it struck the plaintiff, and that the plaintiff at the time was two feet west of the west rail and in position to get on his car when it reached him. The plaintiff had just turned, or was in the act of turning towards the east, with his back partially towards defendant's automobile the moment he was struck. The plaintiff, as he did in this instance, would regularly pass down near and west of the street car rail in performing his act of flagging and turn to face east as he beckoned the motorman to come on. The defendant saw the plaintiff at all times.
The jury found that the defendant was negligent in respect of the course and control of his automobile, that the plaintiff was not negligent, and assessed plaintiff's damages to time of trial at $2,500 and his future damages at $4,000. Judgment was entered upon the verdict.
Curran & Sher, of Superior, for appellant.
Crawford & Crawford, of Superior, for respondent.
The defendant lays as grounds for reversal of the judgment that as matter of law: (1) The defendant was not negligent; (2) the plaintiff was guilty of contributory negligence; (3) the damages are excessive; (4) the court erred in limiting cross-examination of the plaintiff respecting certain allegations of the complaint; (5) the plaintiff's counsel persisted in keeping before the jury the fact that the defendant carried indemnity insurance.
[1] 1. Upon the bare facts above stated, it is manifest that the jury were justified in finding the defendant negligent. He saw the plaintiff during his whole flagging operation. He turned in behind the plaintiff instead of keeping well to his right as he might have done without inconvenience to himself or interference with other users of the highway. He had just started up his car, and was going so slowly that he could have stopped it instantly. Notwithstanding this he struck the plaintiff. This so plainly spells negligence that further discussion of the point is needless.
[2][3] 2. That the plaintiff was not negligent seems equally plain. He was required by section 193.30, Stats., to flag his car. He performed the flagging operation in the manner that it is regularly performed. He had equal right to the highway with other users of it. He might properly assume that drivers of the waiting automobiles would observe a proper lookout and would see him and would not willfully or carelessly run him down in their on-coming. To uphold defendant's contention it would have to be held as matter of law that plaintiff was required to go backwards or sideways or keep turning around while passing to the point at which he would board his car. It is true, as defendant contends, that a workman on the street must pay some attention to traffic. “He cannot let his thoughts go wool-gathering.” Dinan v. Chicago & M. E. R. Co., 164 Wis. 295, 159 N. W. 944, 945. The plaintiff could not in utter heedlessness step in front of an on-coming car, as defendant's counsel seem to think he did. But it is sufficient to say in answer to this that the jury found that he did not so step upon evidence amply sufficient to support their finding. The plaintiff, after completing performance of his statutory duty, possessed at least equal rights with other persons on the street about to board street cars. Their rights under somewhat similar circumstances are considered in Nelson v. Pauli, 176 Wis. 1, 6, 7, 186 N. W. 217.
[4] 3. The jury were justified in concluding that the plaintiff's principal injury was a permanent separation of the parts of the left side of the sacroiliac joint, resulting in great pain, lameness, and inability to work. His loss of wages up to the time of the trial amounted to $1,500. He was earning $125 to $130 a month at the time of his injury; he had been working at his then occupation for years prior to his injury without loss of time or lameness or trouble with the sacroiliac joint. He was incapacitated for work as a result of the injury. His expectancy of life was 16.72 years; $900 was allowed him for pain and suffering up to the time of trial, and $4,000 for loss of earnings and pain and suffering in the future. It is true that he had arthritis of apparently long standing, which ordinarily causes some pain...
To continue reading
Request your trial
-
Eagan v. O'Malley
... ... 169; Fuel ... Co. v. Damkmer, 52 F.2d 929, C. C. A. 4th Circuit; ... Jones v. Co., 40 S.W.2d 465; Smith v ... Lammert, 41 S.W.2d 791; Walker v. Pomush, ... (Wisc.) 238 N.W. 859; Raines v. Wilson, (Ia.) 239 N.W ... The ... cause was submitted for defendant in error on the brief ... ...
-
Filipiak v. Plombon
...whose name is mentioned in the questioning, has a financial interest in the result of the action. A later case, Walker v. Pomush (1931), 206 Wis. 45, 238 N.W. 859, indicates an intention of the court to restrict the rule, that it is proper on voir dire examination to ask jurors if they are ......
-
Pecor v. Home Indem. Co. of N.Y.
...in without good reason, and so handle the matter as to prevent as far as possible any possible resulting prejudice.” Walker v. Pomush, 206 Wis. 45, 51, 238 N.W. 859, 861. Counsel's statement in this connection tended to eliminate defendant Jackson from liability for damages to plaintiffs an......
-
Neitzke v. Kraft-Phenix Dairies, Inc.
...132, 403, and 469 of the Laws of 1931, applied to the situation, makes little if any difference. As was held in Walker v. Pomush, 206 Wis. 45, 238 N. W. 859, 861: “If it were a fact or were now claimed that compensation had been paid or was payable by the employer, as indicated in Theby v. ......