Volkmann v. Fidelity & Casualty Co. of New York

Wisconsin Supreme Court

Volkmann v. Fidelity & Casualty Co. of New York

22 N.W.2d 660, 248 Wis. 615, 1946 Wisc. LEXIS 254

CourtWisconsin Supreme Court

DecidedMarch 14, 1946

StatusPublished

Cited by6 cases

This text of 22 N.W.2d 660 (Volkmann v. Fidelity & Casualty Co. of New York) 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.

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Volkmann v. Fidelity & Casualty Co. of New York, 22 N.W.2d 660, 248 Wis. 615, 1946 Wisc. LEXIS 254 (Wis. 1946).

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Opinions

Barlow, J.

The questions presented are whether, from the credible evidence, the court properly determined as a matter of law that the infant plaintiff was negligent in respect to *619 his manner of crossing the street, and that the comparative negligence attributable to the plaintiff was more than fifty per cent, contrary to the answers of the jury in the special verdict.

No claim of error is made on the admission of evidence or in the charge to the jury. The only claim by appellants is that the court erred in changing the answers to subdivisions (c) of questions 3 and 4, and in changing the answer to question 5 of the special verdict. Appellants do not question the negligence of the plaintiff as found by the jury, but argue that there is no credible evidence to warrant the court in finding plaintiff guilty of causal negligence, as a matter of law, in the manner in which he crossed the street. It is argued that the questions in subdivisions (c) of questions 3 and 4 are mere overlapping or duplicate findings of fact to other subdivisions of the same questions, and are not to be considered in determining the issue of comparative negligence, citing Callaway v. Kryzen (1938), 228 Wis. 53, 279 N. W. 702; Guderyon v. Wisconsin Telephone Co. (1942) 240 Wis. 215, 2 N. W. (2d) 242; Saley v. Hardware Mut. Casualty Co. (1945) 246 Wis. 647, 18 N. W. (2d) 342.

We have carefully examined the charge to the jury in an effort to determine what the court had in mind in submitting the question of negligence of the plaintiff in the manner in which he crossed the street. He probably had in mind the direction in which plaintiff ran, and possibly the speed at which he was traveling, but this is conjecture on our part, and no doubt the jury was at a loss to know what they were to consider in answering the particular questions, as they received no enlightenment from the instructions. Just what the court had 'in mind when he changed the answers to these questions was not made clear at the hearing on motions after verdict. Other claimed acts of negligence on the part of the plaintiff were questions of fact for the jury from the evidence, and while the questions submitted were proper for the jury to pass on, it is considered they were not submitted under sufficient instruc *620 tions to permit them to fairly and intelligently answer them. The court considered these questions important, or he would not have submitted them.

With reference to question 5, where the jury found the amount of causal negligence attributable to the plaintiff to be ten per cent, we consider it was greater than the amount found by the jury and was considerable, but under all the facts in the case we cannot say the court was justified to find as a matter of law that it amounted to more than fifty per cent. The facts show that the plaintiff was bright, well-trained, and taught by his mother the dangers of crossing busy streets between intersections, as well as at intersections. As was said by this court in Van Lydegraf v. Scholz (1942), 240 Wis. 599, 602, 4 N. W. (2d) 121, “This is all a child needs to know in order to be obligated to yield the right of way.” But at the same time, the defendant is held to a special degree of care when the safety of children is involved. Ruka v. Zierer (1928), 195 Wis. 285, 218 N. W. 358, and cases there cited. The defendant driver of the bus admits that by fully applying his brakes he could have stopped the bus before he struck the plaintiff, and that he did not sound his horn at any time. This is not a case of a child darting in front of defendant’s bus when the bus was only a few feet from him. According to his own testimony the defendant driver saw the plaintiff enter the street when he was fifty feet away. The amount of causal negligence attributable to each party to an action must be such as is warranted by the competent evidence in the case. In order to determine this the jury must properly determine the negligence of each party under proper instructions, which we do not consider was done in this case.

By the Court. — Order and judgment reversed, and the record is remanded to the trial court for trial upon the issues of liability only, the damages to be governed by the stipulation of the parties.

Rector, J., took no part.

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Barlow, J.

The questions presented are whether, from the credible evidence, the court properly determined as a matter of law that the infant plaintiff was negligent in respect to *619 his manner of crossing the street, and that the comparative negligence attributable to the plaintiff was more than fifty per cent, contrary to the answers of the jury in the special verdict.

No claim of error is made on the admission of evidence or in the charge to the jury. The only claim by appellants is that the court erred in changing the answers to subdivisions (c) of questions 3 and 4, and in changing the answer to question 5 of the special verdict. Appellants do not question the negligence of the plaintiff as found by the jury, but argue that there is no credible evidence to warrant the court in finding plaintiff guilty of causal negligence, as a matter of law, in the manner in which he crossed the street. It is argued that the questions in subdivisions (c) of questions 3 and 4 are mere overlapping or duplicate findings of fact to other subdivisions of the same questions, and are not to be considered in determining the issue of comparative negligence, citing Callaway v. Kryzen (1938), 228 Wis. 53, 279 N. W. 702; Guderyon v. Wisconsin Telephone Co. (1942) 240 Wis. 215, 2 N. W. (2d) 242; Saley v. Hardware Mut. Casualty Co. (1945) 246 Wis. 647, 18 N. W. (2d) 342.

We have carefully examined the charge to the jury in an effort to determine what the court had in mind in submitting the question of negligence of the plaintiff in the manner in which he crossed the street. He probably had in mind the direction in which plaintiff ran, and possibly the speed at which he was traveling, but this is conjecture on our part, and no doubt the jury was at a loss to know what they were to consider in answering the particular questions, as they received no enlightenment from the instructions. Just what the court had 'in mind when he changed the answers to these questions was not made clear at the hearing on motions after verdict. Other claimed acts of negligence on the part of the plaintiff were questions of fact for the jury from the evidence, and while the questions submitted were proper for the jury to pass on, it is considered they were not submitted under sufficient instruc *620 tions to permit them to fairly and intelligently answer them. The court considered these questions important, or he would not have submitted them.

With reference to question 5, where the jury found the amount of causal negligence attributable to the plaintiff to be ten per cent, we consider it was greater than the amount found by the jury and was considerable, but under all the facts in the case we cannot say the court was justified to find as a matter of law that it amounted to more than fifty per cent. The facts show that the plaintiff was bright, well-trained, and taught by his mother the dangers of crossing busy streets between intersections, as well as at intersections. As was said by this court in Van Lydegraf v. Scholz (1942), 240 Wis. 599, 602, 4 N. W. (2d) 121, “This is all a child needs to know in order to be obligated to yield the right of way.” But at the same time, the defendant is held to a special degree of care when the safety of children is involved. Ruka v. Zierer (1928), 195 Wis. 285, 218 N. W. 358, and cases there cited. The defendant driver of the bus admits that by fully applying his brakes he could have stopped the bus before he struck the plaintiff, and that he did not sound his horn at any time. This is not a case of a child darting in front of defendant’s bus when the bus was only a few feet from him. According to his own testimony the defendant driver saw the plaintiff enter the street when he was fifty feet away. The amount of causal negligence attributable to each party to an action must be such as is warranted by the competent evidence in the case. In order to determine this the jury must properly determine the negligence of each party under proper instructions, which we do not consider was done in this case.

By the Court. — Order and judgment reversed, and the record is remanded to the trial court for trial upon the issues of liability only, the damages to be governed by the stipulation of the parties.

Rector, J., took no part.

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22 N.W.2d 660, 248 Wis. 615, 1946 Wisc. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volkmann-v-fidelity-casualty-co-of-new-york-wis-1946.

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