Opinion
September 16, 1948. —
October 12, 1948.
APPEAL from a judgment of the circuit court for Milwaukee county: OTTO H. BREIDENBACH, Circuit Judge. Affirmed.
D. J. Regan of Milwaukee, for the appellants.
Roy O. Conen and Nathaniel D. Rothstein, both of Milwaukee, for the respondent.
The plaintiff sought damages for personal injuries sustained as a result of a collision between an automobile operated by him and a tractor-trailer operated by a servant of the defendant, Motor Transport Company, and insured by the defendant, Milwaukee Automobile Insurance Company. Action was commenced on June 24, 1946. Judgment was entered on January 19, 1948, in favor of the plaintiff and against the defendants in the sum of $665.85.
On December 5, 1945, about 2:30 a.m., the plaintiff was operating an automobile in a westerly direction on West Wells street in the city of Milwaukee, Wisconsin. He was alone in the car. Edmund Osowski, a servant of the defendant, Motor Transport Company, was operating a tractor-trailer unit north on North Fifth street. The trailer carried a load of ten tons of coal. Neither street was an arterial highway. Each street was about fifty feet wide. The weather was normal.
The testimony of the plaintiff and the defendant differed completely with respect to the claims of the alleged speed that the vehicles in question were traveling. Plaintiff declared that when he approached the intersection in question, the defendant's truck driver was traveling at thirty to thirty-five miles per hour, and respondent testified that he was traveling about twenty miles per hour on West Wells street. The defendant's truck driver testified concerning speed that his unit was traveling about ten miles per hour when he was at the south curb of West Wells street and that the plaintiff was traveling about twenty-five miles per hour when he observed the plaintiff's car about one-half block east of the intersection in question.
Edwin Justen, a police officer, investigated the accident. He testified that plaintiff stated that he intended to turn north on North Fifth street, figuring he could turn before the truck came across the intersection, but struck the cab of the truck before he made the turn. He found the entire front end of the plaintiff's car damaged. The truck was damaged on the right front fender and the side of the cab at a point about three to three and one-half feet from the front of the tractor.
The jury in its verdict found Edmund Osowski, the driver of the truck and trailer of defendant, negligent with respect to speed, management and control of his truck and yielding the right of way and such negligence being an efficient cause of the injury to plaintiff, Roy Parker. It also found negligence on the part of plaintiff with respect to the management and control of the automobile and that such negligence was an efficient cause of his injury. The proportion of negligence attributable to producing the injury was seventy-five per cent for the defendant's driver and twenty-five per cent for plaintiff.
In this case there were only two witnesses to the accident, the plaintiff and defendant's driver, Osowski. The conflicting stories of the two were sifted by the jury in determining the facts and credibility and belief were attached to the plaintiff's testimony as to how this collision occurred.
Bazelon v. Lyon (1906), 128 Wis. 337, 341, 107 N.W. 337: "It is also insisted that there was not sufficient evidence to support the verdict. Where there is any credible evidence to support the verdict this court will not disturb the ruling of the trial court sustaining the verdict."
Suts v. Chicago N.W. R. Co. (1931) 203 Wis. 532, 536, 234 N.W. 715: "There was a clear conflict which was resolved by the jury in favor of the plaintiff, and under the familiar rule of law the verdict of the jury cannot be disturbed."
Meyer v. Neidhoefer Co. (1933) 213 Wis. 389, 391, 251 N.W. 237: "A jury question existed as to the negligence of the driver of the yellow truck. The usual questions with relation to the negligence of this driver were properly submitted and there is evidence supporting the findings of the jury. This evidence was believed by the jury and is therefore to be accepted here as controlling. Trautmann v. Charles Schefft Sons Co. 201 Wis. 113, 228 N.W. 741."
Bent v. Jonet (1934), 213 Wis. 635, 643, 252 N.W. 290: "It is claimed that the verdict of the jury with respect to comparative negligence is against the great weight and clear preponderance of the evidence. This court has held, both in McGuiggan v. Hiller Brothers, 209 Wis. 402, 245 N.W. 97, and Brown v. Haertel, 210 Wis. 345, 244 N.W. 630, that only in rare instances could this court reverse a jury's finding with respect to the comparative negligence of plaintiff and defendant, and then only in cases where the negligence of each was of the same kind or character."
We feel that there is sufficient evidence to support the findings of the jury.
The defendant claims that the damages allowed to plaintiff are excessive. The evidence shows that the plaintiff was disabled about six weeks and that his wage loss was approximately $200. The doctor bill was $50, and $550 was awarded for pain and suffering. The award as to damages was within the sound discretion of the jury and we do not feel that the amount is so extravagant as to show error, passion or prejudice which would justify the setting aside of the verdict as excessive. Ward v. Thompson (1911), 146 Wis. 376, 131 N.W. 1066.
By the Court. — Judgment affirmed.