Zeinemann v. Gasser
Decision Date | 14 October 1947 |
Citation | 251 Wis. 238,29 N.W.2d 49 |
Parties | ZEINEMANN et al. v. GASSER et al. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Sheboygan County; Henry A. Detling, Judge.
Affirmed.
Dorothy Zeinemann and Robert Zeinemann, plaintiffs and respondents, joined in an action begun August 6, 1946, for the recovery of damages for personal injuries and damage to Robert Zeinemann's automobile, alleged to have been suffered as the result of a collision between Zeinemann's automobile and the automobile of defendant and appellant Peter Gasser. Hartford Accident and Indemnity Company, a foreign insurance corporation, Gasser's insurance carrier, was joined as a party defendant, and Farmers Mutual Automobile Insurance Company, a Wisconsin corporation, Zeinemann's insurance carrier, was interpleaded as a party to the action. Defendant Gasser interposed a counterclaim and cross-complaint for damage to his automobile, and defendant Hartford Accident and Indemnity Company interposed a counterclaim and cross-complaint for contribution against interpleaded defendant Farmers Mutual Automobile Insurance Company in the event it should be adjudged Dorothy Zeinemann's injuries were caused by the negligence of both Zeinemann and Gasser.
The case was tried to the court and a jury, and a special verdict returned. The special verdict found defendant Gasser guilty of negligence with respect to (a) speed, and (b) management and control of his automobile, and found that negligence as to management and control was a cause of the collision but speed was not a cause. The court changed the answer of whether speed was a cause of the collision from ‘No’ to ‘Yes.’ Plaintiff Robert Zeinemann was found free of negligence. From a judgment entered October 11, 1946, awarding the plaintiff Dorothy Zeinemann $6,000 damages and $152.95 costs, and awarding the plaintiff Robert Zeinemann $2,793.45 damages and $106.61 costs, and dismissing the cross-complaint of the appellants against the interpleaded defendant, Farmers Mutual Automobile Insurance Company with costs and disbursements allowed in the sum of $120.72, defendants appeal. Buchen, Currie, Federer, Grote & Hesslink, of Sheboygan, for appellants.
Bassuener, Humke, Poole & Axel, of Sheboygan, for plaintiff and respondent Dorothy Zeinemann.
Gruhle, Fessler & Wilkus, of Sheboygan, for plaintiff and respondent Robert Zeinemann and interpleaded respondent.
Defendants contend the evidence does not sustain the findings of the jury (1) that defendant Gasser was negligent as to management and control; (2) that the negligence as to management and control was a cause of the collision; (3) that defendant Gasser was negligent as to speed; (4) that plaintiff Robert Zeinemann was free of negligence. Defendants also contend the trial court was not warranted in changing the answer of the jury making speed a cause of the collision. Claim is also made that damages awarded by the jury to Dorothy Zeinemann are excessive. It is necessary to examine the facts to determine the questions presented.
The collision occurred about 2:00 a. m. March 1, 1946. Plaintiff Robert Zeinemann was driving his Ford automobile in an easterly direction on State Trunk Highway No. 28 in the village of Kohler, Sheboygan county, Wisconsin, with his wife, plaintiff Dorothy Zeinemann, a passenger riding in the front seat. Defendant Peter Gasser was driving his Chrysler automobile in a westerly direction and intended to turn right or north on High street, to go to the American Club, which is situated on High street, where he resided. The maximum speed allowed in the neighborhood where the accident occurred is thirty-five miles per hour. The statement of facts in appellants' brief well describes the area where the collision occurred and the condition of the highway as follows:
Additional material facts are: The headlights on both cars were lighted. Both partieswere driving conventional gear driven cars with shifting levers. When defendant Gasser was about seven hundred fifty feet east of the point of the accident he disengaged his motor by depressing his clutch, permitting his car to coast. He continued in this manner until the collision occurred, his car starting to skid to the south side of the highway when he was about one hundred feet from the point of collision. Defendant Robert Zeinemann was coming out of the dip and about two hundred fifty feet from the Gasser car when he saw the lights of the Gasser car wavering. Zeinemann had been traveling fifteen to twenty miles an hour. He took his foot off the accelerator and pulled over to the right so that his right wheels were about two feet off the concrete to the south. Zeinemann had chains on his car, but did not apply his brakes. The left side of the Gasser car and the front...
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