Webster v. Krembs

• Decision Date: 06 December 1938
• Citation: 282 N.W. 564,230 Wis. 252
• Parties: WEBSTER v. KREMBS et al.
• Court: Wisconsin Supreme Court

230 Wis. 252

282 N.W. 564

WEBSTER

v.KREMBS et al.

Supreme Court of Wisconsin.

Dec. 6, 1938.

Appeal from a judgment of the Circuit Court for Portage County; Byron B. Park, Judge.

Reversed and modified in part; and affirmed as modified.

Action brought by the plaintiffs Zilphia A. Webster, a minor, and James C. Webster, against the defendants, Agnes Cooper and Gerhardt Krembs, and their respective automobile liability insurance carriers, to recover damages sustained by the plaintiffs as the result of the injury of Zilphia A. Webster in an automobile collision alleged to have been caused by the negligence of the defendants Cooper and Krembs in operating automobiles driven by them. In separate answers they denied that they were negligent; and the defendants Cooper and her insurer filed a cross-complaint for contribution by the defendants Krembs and his insurer. The issues under the evidence were submitted to a jury for a special verdict, upon which, as modified by the court on motions after verdict, the court entered judgment for the plaintiffs' recovery of damages from Cooper and her insurer; and for the dismissal of the complaint and the cross-complaint against Krembs. Cooper and her insurer appealed.Lyel N. Jenkins, of Stevens Point, for appellants.

Brazeau & Graves, of Wisconsin Rapids, and Kenneth Anderson, of Stevens Point, for defendants.

Lloyd D. Smith, of Waupaca, and Fisher, Cashin & Reinholdt, of Stevens Point, for respondents.

FRITZ, Justice.

The defendants, Agnes Cooper and her automobile liability insurance carrier, appeal from a judgment against them for the recovery by the plaintiffs, Zilphia A. Webster, a minor, and her father James C. Webster, of damages sustained by them as the result of injury to Zilphia A. Webster by the negligence of the defendant Agnes Cooper in operating an automobile which collided with a car driven by Gerhardt Krembs, in which Zilphia A. Webster was a guest. The plaintiffs' complaint against Krembs and his insurer and also a cross-complaint filed against them by Cooper and her insurer for contribution were dismissed by the judgment.

[1] Before considering matters involving the merits, we may dispose of a question of practice raised by the appellants' contention that because the motions after verdict were not decided within sixty days after the verdict was rendered, and that period was not duly extended by an order, the court was without jurisdiction after the expiration of that period, in view of sec. 270.49(1), Stats., to substitute its finding for an answer in the special verdict, or to do any more than enter judgment on the verdict as returned by the jury. The contention is based on language in the opinions in Lingelbach v. Carriveau, 211 Wis. 653, 248 N.W. 117, 922, and Beck v. Wallmow, 226 Wis. 652, 657, 277 N.W. 705, construing and applying sec. 270.49, Stats. However, it must be noted that the orders under consideration in those cases granted new trials after the expiration of the sixty day period, and also that by the terms therein the scope and effect of sec. 270.49, Stats., is limited to motions “to set aside a verdict and grant a new trial”. By reason of that limitation the restriction that “such motion must be made and heard within sixty days after the verdict is rendered” is applicable only to motions for orders granting a new trial in conjunction with setting aside a verdict. It is not applicable to motions after verdict for other purposes, or to orders granted otherwise than for a new trial.

The collision in question occurred at or near the west line of the right-angle intersection of Highway No. 10, running east and west, and a graveled town road running north and south. The latter was about 20 feet wide. Highway 10 had a 20 feet wide concrete roadway, with 4 feet wide level shoulders on each side extending to guard rails paralleling the roadway. The defendant Cooper approached and entered the intersection from the south and turned westward on Highway 10. Krembs approached from the east and continued westward beyond the intersection.

The jury found (1) that Cooper was not negligent by failure to stop before entering Highway 10; (2) but that there was causal negligence on her part by (a) not keeping a proper lookout, (b) not yielding the right of way, and (c) not making a turn as near as practicable to the left of the center of the intersection; and (3) that Krembs (a) was not negligent by not keeping a proper lookout, but (b) there was causal negligence on his part by not keeping the car under proper control in approaching the intersection. On motions after verdict the court changed the finding that Krembs was negligent in respect to control to a finding that he was not negligent; and entered judgment for the recovery of the plaintiffs' damages from only Cooper and her insurer.

[2] The latter contend that the court erred in substituting its finding that Krembs was not negligent for the jury's finding that he was negligent in not keeping his car under proper control. In passing upon that contention, it must be noted that the fact that the court considered the jury's finding against the preponderance of the evidence would not warrant discarding that finding. If there was any credible evidence which reasonably admitted of inferences sufficient to sustain the jury's finding then what were the proper inferences to be drawn was for the jury, and its findings could not be discarded by the court, although a new trial could have been granted on that ground in the exercise of the court's discretion in the interests of justice. Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 228 N. W. 741.

[3][4][5] It is undisputed that Krembs in coming toward the intersection from the east drove at a speed of 45 to 50 miles per hour, and that while he was approaching the place of the collision and until after it happened, there was no other traffic on the highway in that vicinity which prevented the use of all parts thereof by either of the cars. There was testimony that the Cooper car had stopped before entering Highway 10, and that when it entered upon the concrete Krembs was more than 200 feet east of the intersection; and he admitted that when that car started onto the concrete he was about 200 feet east of the intersection and that he was about at the east line of the intersection when he first applied his brakes. There was also testimony to the following effect: That the Cooper car had completed the turn westward in the intersection, and was headed and proceeding westward clear over on the north half of the concrete when the rear thereof was struck by the right front part of Krembs' car; that a tire skid mark made by the latter car started at a point 2 feet north of the center line of the concrete and 27 feet west of the west line of the intersection, and then continued in a...