Opinion
March 14, 1946. —
April 29, 1946.
APPEAL from an order and judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit Judge. Reversed.
For the appellants there were briefs by Milton T. Murray and Arlo McKinnon, both of Milwaukee, and oral argument by Mr. McKinnon.
For the respondents there was a brief by Bendinger, Hayes Kluwin of Milwaukee, and oral argument by Gerald P. Hayes.
Action commenced September 10, 1942, by John Volkmann, Jr., by John H. Volkmann, his guardian ad litem, and John H. Volkmann, in his individual capacity, plaintiffs, against Fidelity Casualty Company of New York, a foreign insurance corporation, Student Transportation Company, a corporation, and Ervin C. Pree, defendants, to recover damages sustained as a result of John Volkmann, Jr., being struck by a bus of Student Transportation Company operated by its employee, Ervin C. Pree. The case was tried to the court and a jury, and a special verdict rendered. The court changed some of the answers in the special verdict and ordered judgment for the defendants. Plaintiffs appeal from the order changing the answers in the verdict and from the judgment and amended judgment.
Plaintiff John Volkmann, Jr., aged seven years, four months, and eight days, was injured when he was struck by a bus of Student Transportation Company on West Garfield avenue between North Thirteenth and North Fourteenth streets. The street was thirty-six feet wide between curbs, surfaced with black-top, and was dry with the exception of having ice extending out about two and one-half feet from the curb on each side. There was a two and one-half foot boulevard between the sidewalk and the curb on the north side of the street.
About 3:30 p.m., February 24, 1941, John Volkmann, Jr., plaintiff and appellant, who will hereinafter be referred to as "plaintiff," stopped at the home of a school friend on the north side of West Garfield avenue to inquire why he had not been in school that day. As he left the friend's home, two high-school pupils, a girl and a boy, were walking west on the north side of West Garfield avenue, and as they reached a point about seventy-five feet east of North Fourteenth street, plaintiff ran up to them from behind and threw a snowball, striking the girl in the back. Plaintiff then turned and started to run across the street in a southeasterly direction toward his home. He looked back over his right shoulder as he was crossing the street, apparently watching the young lady he had struck with the snowball.
The school bus of Student Transportation Company, defendant and respondent, hereinafter referred to as "defendant," was driven by Ervin C. Pree, and was a regular bus service engaged in transporting crippled school children to and from school. The bus entered West Garfield avenue from North Thirteenth street, and was traveling west at a speed of fifteen miles per hour. The bus driver could see plaintiff and other children after making the turn from North Thirteenth street onto West Garfield avenue. He was driving the bus near the center of the street, intending to make a sweeping turn to the right on North Fourteenth street. The bus was somewhere between fifty and one hundred feet from the plaintiff when he ran into the street. He ran in a southeasterly direction, gaining speed as he traveled, and when he reached the center of the street traveled due south until he was struck by the front of the bus, and was knocked down. When the bus stopped at a point between four and six feet north of the south curb, the left front wheel of the bus was on the left thigh of the plaintiff. It was necessary to back the bus a few feet to release plaintiff's leg. The plaintiff did not see the bus at any time before he was struck.
The testimony of the bus driver was that he was fifty feet away from the plaintiff when the plaintiff left the curb running into the street; that he applied his brakes, reducing his speed to eight miles per hour, and that when he observed the plaintiff did not see him he made full application of his brakes, turning to the left in his effort to avoid striking the plaintiff. The bus driver expected the plaintiff to travel straight south and claims that if he had done so he would have had ample time to cross the street ahead of the bus. The bus driver admitted that if he had fully applied his brakes at the time plaintiff entered the street he could have stopped the bus before he struck the plaintiff, even in the direction the plaintiff traveled. The bus driver and other witnesses testified that the bus driver did everything in his power to avoid striking the plaintiff during the short period of time that transpired from when the plaintiff left the curb until he was struck.
The jury found the bus driver causally negligent with respect to management and control of the bus, and found the plaintiff, John Volkmann, Jr., causally negligent in, (a) failing to exercise timely and efficient lookout, and (b) crossing the street at a place other than a crosswalk, but found that he was not negligent in, (c) the manner in which he crossed the street. The jury then found the proportion of negligence attributable to the plaintiff to be ten per cent, thus leaving the portion attributable to the defendant ninety per cent. On motions after verdict the court changed the answers to subdivisions (c) of questions 3 and 4 of the special verdict from "No" to "Yes," thus finding plaintiff guilty of causal negligence in the manner in which he crossed the street, and changed the answer to question 5 from ten per cent to read "Over fifty per cent," and dismissed plaintiffs' complaint.
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 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 instructions 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.
Reason exists for a new trial in this case because of the possible duplication of questions in the special verdict. The question criticized is not without meaning and under the charge of the court it may be said that it was capable of more than one interpretation.
The evidence shows a child at play and that he was failing to protect himself was known to the defendant. Under the doctrine of Ruka v. Zierer (1928), 195 Wis. 285, 218 N.W. 358, the proportion of negligence as fixed by the jury was warranted. It is only because the import and purpose of the criticized question is capable of being misunderstood that we can send the case back for a new trial in the interests of justice instead of remanding it for the purpose of reinstating the jury's answer to the proportion-of-negligence question and granting judgment to the plaintiff. If the doctrine of the Ruka v. Zierer Case does not obtain, and if the jury had been fully instructed, then the trial court was correct in changing the answer as to the proportion of negligence from ten per cent to fifty per cent.