Zeinemann v. Gasser

Decision Date14 October 1947
Citation251 Wis. 238,29 N.W.2d 49
PartiesZEINEMANN et al. v. GASSER et al.
CourtWisconsin 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.

BARLOW, Justice.

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:

‘High Street intersects Highway 28 at right angles from the north. The first street east of High street is Washington Square which intersects Highway 28 at right angles from the south at a point about two hundred feet east of High street. East of Washington Square is a dip in the road. Washington Square is the highest point in the highway. The highway from that point slopes both to the west and to the east. From Washington Square to the bottom of the dip to the east is approximately eight hundred thirty feet. From the bottom of the dip east to the point of collision is approximately four hundred twenty feet. East of that dip there are guard posts to the south of the highway. The collision occurred immediately east of the dip at between the third and fourth guard posts counting from the west. Approximately five hundred fifty feet east from the point of collision is a driveway leading to a house on the south side of the road. This driveway is about two thousand feet east from High street. Approximately five hundred feet east of this driveway on the north side of the road is the east entrance of the Kohler company plant. The concrete pavement is twenty feet wide.

‘From the point of the accident to the west the highway is straight. Looking east from the point of the accident the highway curves slightly to the south. From the point of the accident to the home to the east, a distance of approximately five hundred fifty feet, the highway curves about twenty-four feet to the south.

‘The bottom of the dip aforementioned is about seven and one-half feet below the highway at the point of the accident. A person sitting in an automobile at the bottom of this dip looking east could see an approaching automobile coming from the east about eight hundred fifty feet.

‘The highway at the point of collision, and to a distance of at least seventy-five feet east of the point of collision, slopes from the north to the south so that the north edge of the concrete highway is four and one-half inches higher than the south line of the concrete roadway. The center line is higher than the south line by three and one-half inches, and the north line is about one inch above the center line.

‘The highway was slippery that night. It was thawing and there was water on the ice. When the Gasser automobile was about one hundred feet east of the point of collision the defendant Gasser lost control of his car, caused by skidding, and the rear end of the car slid to the south and the car turned sideways onto the south lane of the highway, the front facing north. The car continued skidding sideways to the point of impact.’

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...

To continue reading

Request your trial
19 cases
  • Totsky v. Riteway Bus Service, Inc.
    • United States
    • Wisconsin Supreme Court
    • March 28, 2000
    ...shown that this was beyond her control." See also Kempfer v. Bois, 255 Wis. 312, 314, 38 N.W.2d 483 (1949), and Zeinemann v. Gasser, 251 Wis. 238, 243, 29 N.W.2d 49 (1947). While this inference of negligence may not exactly equate with negligence per se, the inference establishes a prima fa......
  • Willard v. Hutson
    • United States
    • Oregon Supreme Court
    • February 27, 1963
    ...Wisconsin court adequately stated the ground of these decisions as follows: 'Counsel concede that this court in Zeinemann v. Gasser, 1947, 251 Wis. 238, 247, 29 N.W.2d 49, 54, considering whether damages awarded by a jury were excessive, "The jury had a right to award damages based on econo......
  • National Biscuit Co. v. Wilson
    • United States
    • Alabama Supreme Court
    • October 11, 1951
    ...1; Brown v. Arnold, 303 Mich. 616, 6 N.W.2d 914; Humphries v. Complete Auto Transit, Inc., 305 Mich 188, 9 N.W.2d 55; Zeinemann v. Gasser, 251 Wis. 238, 29 N.W.2d 49; Stanford v. Holloway, 25 Tenn.App. 379, 157 S.W.2d 864; De Antonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567; Sigmon......
  • Dennis v. Blackwell
    • United States
    • Alabama Court of Civil Appeals
    • October 26, 2018
    ...616, 6 N.W.2d 914 [ (1942) ] ; Humphries v. Complete Auto Transit, Inc., 305 Mich 188, 9 N.W.2d 55 [ (1943) ] ; Zeinemann v. Gasser, 251 Wis. 238, 29 N.W.2d 49 [ (1947) ] ; Stanford v. Holloway, 25 Tenn. App. 379, 157 S.W.2d 864 [ (1941) ] ; De Antonio v. New Haven Dairy Co., 105 Conn. 663,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT