Opinion
October 3, 1950 —
November 8, 1950.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Reversed.
For the appellants there were briefs by Toebaas, Hart, Kraege Jackman of Madison, and oral argument by W. L. Jackman.
For the respondent Gerrit J. Leusink there was a brief by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Harry F. Knipp, all of Janesville.
For the respondents Allen Spielmacher and Allstate Insurance Company there was a brief by Garrigan, Keithley, O'Neal, Mills Dobson of Beloit, and oral argument by Roger D. O'Neal.
Action was brought for personal injuries and property damage resulting from an automobile collision. The jury found both defendants negligent and the court entered judgment on the verdict in favor of plaintiff. From this judgment defendants O'Donnell and Hartford Accident Indemnity Company appeal.
The defendant O'Donnell is the owner of a milk truck — a tractor and trailer. On the day of the collision Crisman, his employee, was operating the truck in an easterly direction on a county trunk highway. The plaintiff was operating his automobile in a westerly direction on the same highway. Defendant Spielmacher was operating on a town road in a southerly direction. As Crisman approached the intersection he observed Spielmacher approaching from the north, but assumed that Spielmacher would stop before entering upon or crossing the arterial upon which he was traveling. He did not again look to his left until he entered the intersection, and then observed that Spielmacher had passed the stop sign without substantially reducing his speed, and realized that a collision was imminent.
The Spielmacher car collided with the left side of the milk tank trailer near the rear, causing it to go out of control. The truck went on toward the east about one hundred thirty feet and collided with plaintiff who was approaching the intersection.
Neither defendant makes any claim that the plaintiff was causally negligent.
The defendant Spielmacher was driving an automobile the brakes of which he knew to be in need of repair. His contention was that when he approached the arterial he applied the brakes and they failed to respond. After the collision he was arrested and pleaded guilty to a charge of wilfully and unlawfully operating a vehicle upon a highway carelessly, heedlessly, without due caution and circumspection.
O'Donnell pleaded gross negligence upon the part of Spielmacher as a complete defense to the action against him. He also contended that Crisman was not negligent but that if he was, it was not causal.
The trial court refused to submit in the special verdict an inquiry as to whether Spielmacher was guilty of gross negligence.
We are of the opinion that the trial court correctly held that the evidence sustained the verdict of the jury that defendant O'Donnell's employee was guilty of causal negligence. As Crisman approached the intersection he was traveling forty miles per hour. When four hundred feet away he observed Spielmacher; he did not again look in that direction until it was too late to act. If he had made proper observation of the Spielmacher car as it approached the stop sign, he could have ascertained that it was not slowing down; and while he might not have been able to avoid the first collision, ordinary care would have required him to reduce his own speed so as to avoid becoming a menace to traffic approaching from the opposite direction.
The testimony that Spielmacher had knowledge of the defective condition of his brakes, although he said he never had experienced total failure before, presented a jury question of gross negligence. His plea of guilty, while it may not be conclusive proof of recklessness, is a matter for the jury to consider in connection with the explanation which he offered of his reasons for entering the plea. The trial court erred in failing to submit the question of gross negligence.
All parties concede that the plaintiff was not negligent. They raise no question that the damages awarded by the jury were excessive, so there appears to be no need for a new trial on the question of damages. By the Court. — Judgment reversed and cause remanded with instructions to grant a new trial on all issues except the question of damages.