Kramer v. Chicago & Milwaukee Electric Railway Co.

Wisconsin Supreme Court

Kramer v. Chicago & Milwaukee Electric Railway Co.

177 N.W. 874, 171 Wis. 627, 1920 Wisc. LEXIS 155

CourtWisconsin Supreme Court

DecidedJune 1, 1920

StatusPublished

Cited by2 cases

This text of 177 N.W. 874 (Kramer v. Chicago & Milwaukee Electric Railway Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kramer v. Chicago & Milwaukee Electric Railway Co., 177 N.W. 874, 171 Wis. 627, 1920 Wisc. LEXIS 155 (Wis. 1920).

Pincite

Opinion

Eschweiler, J.

In charging the jury upon the seventh question, as to whether plaintiff was guilty of any want of ordinary care proximately contributing to his injury, the trial court recited the substance of all but one of the city ordinances' above quoted, but did not inform them that under the law of this state any violation of such provisions was to be considered as negligence as a matter^ of law. Neither did the court submit to the jury, as requested by defendant, any separate questions involving the issues as to whether or not there had been such violations by plaintiff of the respective ordinances. Whether separate questions involving such rules of the road should be submitted in a special verdict need not here be determined. But whether so submitted or when embraced in the more general questions involving the negligence of any party to such a lawsuit, the jury should be charged in connection therewith that a violation of such a rule is negligence as a matter of law. It is then for the court or jury to determine if such negligence proximately contributed to the injury. Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988. This was not done in the instant case, and upon the record we deem it prejudicial error. .

The motorman testified that, while the street car was a considerable distance away, he saw the automobile as it was backing out of the garage and crossing the sidewalk. The jury, however, found by their answer to the first question of the special verdict that the motorman failed to keep a proper lookout. The trial court omitted in his charge to the jury any reference to the ordinance sec. 1242, supra, pleaded by defendant, which requires the having of a light visible on both the front and rear end of an automobile at 'the hour of the evening involved. It seems to have been considered that the submission of any question or the giving of an instruction concerning or with reference to the alleged violation of that particular ordinance was rendered unnecessary in view of such testimony of the motorman, [632]*632under the view that there would be no need of any notice being given by the 'use of such light, he having already discovered the presence of 'the automobile independently of any such light. The jury, however, negatived the keeping of a proper lookout by the motorman. This, inferentially at least, amounts to a finding that the motorman did not see the automobile any appreciable time before the collision, and thus in effect discredits his testimony that he did so see it.-

In such a situation defendant was entitled to have the determination of the jury upon the material and disputed issue of fact as to whether or not there was such a light. Yahnke v. Lange, 168 Wis. 512, 170 N. W. 722.

It follows that the judgment of the circuit court must be reyersed and a new trial granted.

By the Court. — Judgment reversed, and the cause remanded with directions to grant a new trial in the circuit court.

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Eschweiler, J.

In charging the jury upon the seventh question, as to whether plaintiff was guilty of any want of ordinary care proximately contributing to his injury, the trial court recited the substance of all but one of the city ordinances' above quoted, but did not inform them that under the law of this state any violation of such provisions was to be considered as negligence as a matter^ of law. Neither did the court submit to the jury, as requested by defendant, any separate questions involving the issues as to whether or not there had been such violations by plaintiff of the respective ordinances. Whether separate questions involving such rules of the road should be submitted in a special verdict need not here be determined. But whether so submitted or when embraced in the more general questions involving the negligence of any party to such a lawsuit, the jury should be charged in connection therewith that a violation of such a rule is negligence as a matter of law. It is then for the court or jury to determine if such negligence proximately contributed to the injury. Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988. This was not done in the instant case, and upon the record we deem it prejudicial error. .

The motorman testified that, while the street car was a considerable distance away, he saw the automobile as it was backing out of the garage and crossing the sidewalk. The jury, however, found by their answer to the first question of the special verdict that the motorman failed to keep a proper lookout. The trial court omitted in his charge to the jury any reference to the ordinance sec. 1242, supra, pleaded by defendant, which requires the having of a light visible on both the front and rear end of an automobile at 'the hour of the evening involved. It seems to have been considered that the submission of any question or the giving of an instruction concerning or with reference to the alleged violation of that particular ordinance was rendered unnecessary in view of such testimony of the motorman, [632]*632under the view that there would be no need of any notice being given by the 'use of such light, he having already discovered the presence of 'the automobile independently of any such light. The jury, however, negatived the keeping of a proper lookout by the motorman. This, inferentially at least, amounts to a finding that the motorman did not see the automobile any appreciable time before the collision, and thus in effect discredits his testimony that he did so see it.-

In such a situation defendant was entitled to have the determination of the jury upon the material and disputed issue of fact as to whether or not there was such a light. Yahnke v. Lange, 168 Wis. 512, 170 N. W. 722.

It follows that the judgment of the circuit court must be reyersed and a new trial granted.

By the Court. — Judgment reversed, and the cause remanded with directions to grant a new trial in the circuit court.

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Bluebook (online)

177 N.W. 874, 171 Wis. 627, 1920 Wisc. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kramer-v-chicago-milwaukee-electric-railway-co-wis-1920.

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