Zastrow v. Schaumburger

• Citation: 210 Wis. 116,245 N.W. 202
• Parties: ZASTROW v. SCHAUMBURGER ET AL.
• Decision Date: 09 November 1932
• Court: United States State Supreme Court of Wisconsin

210 Wis. 116

245 N.W. 202

ZASTROW

v.SCHAUMBURGER ET AL.

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from a judgment of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.

Action by Paula J. Zastrow against Frederick Schaumburger and another, who impleaded Harold L. Geisse as a party defendant. From a judgment in favor of plaintiff, the first two defendants appeal.--[By Editorial Staff.]

Affirmed.

This action was commenced on December 9, 1931, to recover damages for the wrongful death of plaintiff's husband, alleged to have been caused by the negligence of defendant Schaumburger who, at the time of the accident, was operating a bakery truck belonging to defendant Loomans, which collided with a Cadillac automobile driven by deceased, but alleged to have been driven by Geisse. The accident occurred on United States highway 51 in Portage county, between Stevens Point and Wausau.

After the commencement of this action, defendantGeisse was made a party thereto on motion of defendants Schaumburger and Loomans (hereinafter called the defendants), who sought to recover a judgment for contribution against him, in case it should be found that both defendants Schaumburger and Geisse were negligent, and that their concurring negligence caused the death of said deceased.

Upon the trial, the jury found that Schaumburger was negligent at the time of the collision in respect to keeping a sufficient lookout and control of his truck and in respect to keeping to his right side of the roadway; that the collision was the natural result of such negligence; that defendant Geisse was not driving the Cadillac at the time of the collision; that the driver of the Cadillac was not negligent in respect to lookout, control of his car, or rate of speed; and that the damages suffered by the plaintiff, on account of the death of her husband, were $8,500.

Motions to change the answers, for judgment on the verdict when changed, and for a new trial, based on the contentions that certain evidence was erroneously admitted over the objection of defendants and that the damages found are excessive, were made and denied. From a judgment in favor of the plaintiff and against the defendants, entered on the 6th day of January, 1932, the defendants appealed.

Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.

Genrich & Genrich, of Wausau (L. A. Pradt, Jr., of Wausau, of counsel), for impleaded defendant.

NELSON, J.

Just prior to and at the time of the collision which occurred on February 17, 1931, at about 7 o'clock in the morning, the plaintiff's husband, as the servant of Wisconsin Valley Electric Company, was driving a Cadillac automobile in a southerly direction on United States highway 51, and the defendant Schaumburger, as the servant of defendant Loomans, was driving a Dodge truck along said highway in the opposite direction. Highway 51, at the place of collision, was concreted to a width of 18 feet which was free of snow or ice. The road was straight from a curve located about 750 feet south of the point of collision for a considerable distance to the north. Shortly before the collision both the Cadillac and the truck were being driven on their proper sides of the road. When the Cadillac was about 100 to 150 yards away from the truck, the latter was observed gradually to cross the black line at an obtuse angle. The Cadillac was turned off the concrete to the right and onto the shoulder to avoid hitting the truck. Just immediately prior to the collision, however, the truck turned more abruptly to its left at a more acute angle and crashed into the Cadillac, more or less head-on. Immediately after the collision, the Cadillac came to a stop on the west shoulder of the roadway so that its left rear wheel was 5 1/2 feet from the edge of the concrete and its right front wheel was 4 feet away from the concrete. The truck, immediately after the collision, came to rest with its front end against the left front side of the Cadillac and in contact with it. The two cars immediately caught fire, and both were completely destroyed. At the time of the accident, the Cadillac was en route from Wausau to Madison. Besides the deceased, defendant Geisse and a Mr. Frederickson were occupants of that car. There was evidence tending to show that, taking into consideration the time when the Cadillac left Wausau and the distance it had traveled, it must have been operated at a high rate of speed in order to reach the point of collision at about 7 o'clock in the morning.

Schaumburger resided at Wausau, although employed by Loomans, who lived at Stevens Point. It was Schaumburger's custom to leave Wausau each morning at about 4:25 o'clock without eating his breakfast, drive to Stevens Point, eat his breakfast there, load up his truck, and then drive back to Wausau, and thence to Antigo and back to Wausau. The evidence showed that Schaumburger had attended a dance the night before at Wausau from about 9:30 until 12:30 to 1 o'clock, and that he had slept only a little more than three hours before he arose to go to Stevens Point on the morning of the accident. This evidence was no doubt introduced to permit the jury to infer that defendant was either asleep or drowsy just prior to the collision, and that the collision resulted from his negligent failure to maintain a sufficient and proper lookout. There was, however, evidence tending to show that Schaumburger stopped the truck and waited for two other bakery trucks to overtake him at a point three-fourths of a mile south of the point of the collision, and that he then and there talked to one of the drivers about a matter of business. Between that point and the place of the collision there was a curve in the road which Schaumburger successfully negotiated. Schaumburger testified that while he was proceeding along said highway with due care he felt the left front of the truck settle down, and that he realized that the left front tire was either going or had gone flat; that this had a tendency to pull the truck to the left; that he attempted to pull the truck back to its proper side of the road, but failed to do so; that he applied both service and emergency brakes and attempted to stop the truck, but that as he applied the brakes the truck swerved still farther to the left and collided with the Cadillac. There was no other testimony as to the left front tire having gone flat or as to its actual condition immediately after the collision. Schaumburger and the surviving occupants of the Cadillac were seriously injured. The two other bakery trucks soon arrived upon the scene and the drivers thereof through heroic efforts extricated Frederickson, Schaumburger, and the deceased from the wrecked and burning cars. There was a dispute as to whether Geisse got out of the Cadillac unassisted or whether he also was helped out by the drivers mentioned. The foregoing constitutes a fair statement of the facts.

The defendants contend (1) that the evidence is insufficient, as a matter of law, to support the finding of the jury that defendant Schaumburger was in any manner negligent; (2) that the deceased was negligent as a matter of law because he did not stop his car after seeing the truck begin to cross the black line; (3) that prejudicial error was committed by the court (a) in permitting Geisse, over the objection of defendants, to testify to a conversation which he had with Schaumburger about thirty minutes after the collision, and (b) in further permitting him to testify that the deceased was, to his knowledge, a careful driver; and (4) that the damages found are excessive.

[1][2][3] 1. Defendants' first contention is based upon the claimed verity that the left front tire of the truck went flat just prior to the collision, that the truck unavoidably veered to the left without negligence on the part of Schaumburger and in spite of anything that he could do. Defendants rely upon Seligman v. Hammond, 205 Wis. 199, 236 N. W. 115. That case involved a collision bebtween two cars, a Packard traveling on its proper side of the roadway and a Nash approaching from the opposite direction which suddenly swerved across the road to its left and collided with the Packard. It appeared without dispute in that case that the left front tire of the Nash, which...