Hartford Fire Insurance v. Szewczykowski

217 N.W. 655, 195 Wis. 67, 1928 Wisc. LEXIS 62

• Court: Wisconsin Supreme Court
• Decided: February 7, 1928
• Status: Published

Opinion

CrowNHART, J.

The evidence clearly presented a jury question as to gross negligence, and we deem it unnecessary to discuss that question.

No timely request was made by the defendant for a special verdict or for questions to be submitted to the jury. The defendant’s principal objection on this appeal is that the court did not submit to the jury the question of ordinary negligence. While it would have been entirely proper for the court to have submitted both questions, the defendant cannot complain because he was not prejudiced by the failure to submit the question of ordinary negligence. He would have been liable if the jury had found for the plaintiff on either count, but he could not be held for both gross and ordinary negligence. Astin v. C., M. & St. P. R. Co. 143 Wis. 477, 128 N. W. 265.

The defendant was clearly guilty of ordinary negligence as a matter of law, if he was not guilty of gross negligence. Although the court did not give any reason for failure to submit the question of ordinary negligence, we must presume from the facts of the case that the court had in mind, if the jury found defendant free from gross negligence, the court would enter judgment for plaintiff on the ground of ordinary negligence as a matter of law.

In any view of the case the defendant was not prejudiced by the failure of the court to submit the question of ordinary -negligence.

By the Court. — The judgment of the circuit court is affirmed.