Opinion
October 12, 1948. —
November 16, 1948.
APPEAL from a judgment of the circuit court for Richland county: ARTHUR W. KOPP, Circuit Judge. Affirmed.
For the appellants there was a brief by Brindley Brewer, attorneys, and James G. Robb of counsel, all of Richland Center, and oral argument by Mr. Robb.
Vernon W. Thomson of Richland Center, for the respondent.
Automobile accident. This action was commenced on December 11, 1946, by Joseph Carley, a minor, by Harold Carley, his guardian ad litem, and Harold Carley in his own right, to recover damages for personal injuries received in an automobile accident alleged to be due to the negligence of the defendant Charles Jewett. The case was tried to the jury and the jury found the defendant negligent with respect to keeping a proper lookout, with respect to speed, and with respect to sounding his horn, and that the negligence so found was the cause of the plaintiff Joseph Carley's injuries. The jury also found that Joseph Carley was negligent with respect to keeping a proper lookout before attempting to cross the highway, and with respect to yielding the right of way to the defendant's car, and that the negligence so found was a cause of the injury sustained by Joseph Carley, and apportioned the negligence seventy-five per cent to the defendant and twenty-five per cent to the plaintiff Joseph Carley, and assessed the damages at the sum of $2,110.
On motions after verdict the court changed the answers to the questions apportioning the negligence. As changed fifty per cent of the negligence was held to be attributable to the plaintiff Joseph Carley and fifty per cent to the defendant Charles Jewett, and judgment was entered accordingly on the 17th day of November, 1947, dismissing the complaint of the plaintiffs, from which the plaintiffs appeal.
In this case the court is equally divided. Mr. Chief Justice ROSENBERRY, Mr. Justice FAIRCHILD, and Mr. Justice MARTIN are of the view that the judgment should be affirmed. Mr. Justice FRITZ, Mr. Justice WICKHEM, and Mr. Justice HUGHES are of the view that the judgment should be reversed. This results in affirmance of the judgment by a divided court.
By the Court. — Judgment affirmed.
BROADFOOT, J., took no part.