Summary
holding that it was harmless error to exclude evidence when the evidence would have simply corroborated an “undisputed” statement
Summary of this case from State v. JacksonOpinion
January 10, 1950 —
February 7, 1950.
APPEAL from an order of the circuit court for Dunn county: KENNETH S. WHITE, Circuit Judge. Reversed.
For the appellant there was a brief by Slocumb Bundy of Menomonie, and oral argument by R. E. Bundy and Ira O. Slocumb.
For the respondent there was a brief by Stafford Stafford, attorneys, and R. F. Pfiffner of counsel, all of Chippewa Falls, and oral argument by Mr. Pfiffner.
Plaintiff sought to recover damages for injury to his property. After verdict for plaintiff, plaintiff moved for judgment on the verdict and defendant moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The motion for new trial was granted. Plaintiff has appealed and defendant noticed a motion to review. The action was begun June 14, 1948, and the order was entered February 10, 1949.
The material facts are as follows: Matson operated a truck line and employed a driver named Bailey. He forbade Bailey to let anyone else drive. One night while returning from a trip and while on Matson's business, Bailey permitted one Nielson to drive while Bailey sat beside him. In going through the city of Menomonie, and at a place where the street curved to the left, Nielson drove so near the right curb that the side of the truck struck a telephone pole located close to the curb and broke it.
The damage to the pole caused a cable to sag across the street. A short time later Peterson, driving plaintiff Brandt's van, and following Nielson at a distance estimated to be about a mile, passed under the cable without seeing it or knowing it was there until it caught the top of the van and caused the damages which Brandt seeks to recover in this action. This action was consolidated for trial with the suit begun by the owner of the pole against Matson, entitled Wisconsin Telephone Co. v. Matson, and this appeal has likewise been consolidated with the appeal of the telephone company. Other material facts will be referred to in the opinion.
This case is ruled by our decision in Wisconsin Telephone Co. v. Matson, ante, p. 304, 41 N.W.2d 268, in that Matson's truck driven by Nielson is determined to have struck the telephone pole. that such collision was caused by the negligent driving of Nielson, and that Matson is responsible for resulting damage to a third person in the absence of such person's contributory negligence.
The special verdict contained no question directly asking the jury if Nielson's negligent driving was the proximate cause of the collision plaintiff's truck had with the sagging cable. We think that only an affirmative answer could be given to that under the evidence and will not direct a new trial because the question was omitted. Questions were submitted asking whether Nielson was negligent in failing to stop and notify the telephone company of the damage to its property and whether such failure caused the collision of the Brandt vehicle with the cable. The jury answered "Yes" to both. Testimony concerning Peterson's speed placed it at twenty-five to thirty-five miles per hour. His estimate of a mile as the distance between his van and Matson's truck was not contradicted. At twenty-five miles per hour he would have reached the scene in two minutes twenty-four seconds after the truck had struck the pole. While we doubt that any effort to notify the telephone company could have prevented the second accident because of the short time involved. we consider this immaterial because the effects of Nielson's negligent collision with the pole persisted to cause the damage to Brandt's van.
The jury was also asked if plaintiff's driver, Peterson, was negligent as to lookout, and answered "No." Defendant requested a question whether Peterson was negligent in driving with his headlights set on the low beam. The court refused the request. Peterson had testified that visibility was good under the city street lights at the scene of the accident, but he was watching the road around the curve and was not looking for anything coming down from the air. We consider the question as to lookout was sufficient upon this testimony and it was not error to refuse a separate question concerning the headlights.
After verdict, which answered all questions in plaintiff's favor, the learned trial court denied plaintiff's motions for judgment on the verdict and granted a new trial because: (1) He thought it error to exclude Matson's evidence that he had forbidden Bailey to let anyone else drive; (2) he thought it error to admit Bailey's adverse examination in evidence; (3) in the interests of justice.
The adverse examination was introduced by consent of defendant's counsel. Hence, there was no error in its admission. It contained Bailey's statement that Matson had forbidden him to let others drive. The statement was never disputed. Matson's evidence would be merely cumulative and its exclusion was not prejudicial, particularly as we have held him liable for the substitute driver's negligence even though the delegation by Bailey was contrary to orders.
The order directing a new trial was not warranted by the record and must be reversed.
By the Court. — Order reversed and cause remanded with directions to enter judgment for plaintiff on the verdict.