Zeidler v. Goelzer

Rosenberry, J. In discussing the position of the automobile upon the argument to the jury, counsel for plaintiff attempted to read certain allegations contained in the answer of the defendant Elton P. Goelzer as follows: “Admits that on or about January 7, 1920, while he was operating an automobile in Washington Park, the plaintiff came into collision with same while riding upon a sled attached to another automobile. ' “That the defendant was driving with the permission of his father, and while so driving through Washington Park, the plaintiff, while riding upon a sled attached by a long rope to the rear of another automobile, came into collision with the automobile operated by this defendant.” Defendant’s counsel objected to the reading of these allegations on the ground that the pleadings had not been offered in evidence, and the objection was sustained. This was error. Nelson v. Pauli, 176 Wis. 1, 186 N. W. 217. We fail to see, however, how it can be in any respect whatever prejudicial error. It was not disputed that the toboggan was attached to the rear of the automobile. Wherever it was at the time the injury occurred, it was brought there [60] by reason of -the fact that it was attached to the rear of the automobile. Therefore, the situation would not have been changed in the slightest had plaintiff’s counsel been permitted to read from the defendant’s answer the quoted portions. Sec. 2829, Stats., provides: “The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which, shall not affect the substantial rights of the adverse party.’’ This applies to instructions. Trzebietowski v. Jereski, 159 Wis. 190, 149 N. W. 743. It is applicable to immaterial errors in the admission and rejection of testimony. It is also contended that the answer to the third question is inconsistent with the answers to questions 1 and 2 of the special verdict. We fail to see any inconsistency in these answers. It cannot be said that the answer to the third question finds the toboggan to be on either the one or the other side of the road. The jury was asked to say whether or not those upon the toboggan were guilty of negligence in the management and control of the toboggan at the time and place in question. If, as claimed by plaintiff’s counsel, the answer sought to be elicited referred to whether or not they were guilty of negligence by reason of the fact that they were there at all on the toboggan attached to a rapidly moving automobile, the facts being undisputed, the question was one of law for the court. The trial court properly treated it as a question of fact and submitted it to the jury. In this connection complaint is also made in regard to instructions given by the court relating to question 3. The court said: “Now it is claimed on the part of the defendants in this action that the plaintiff and the persons on the toboggan failed to exercise ordinary care in permitting themselves to be in the position they were in at the time of the happening of the event in question. This the plaintiff denies. So you will notice that this question makes inquiry as to whether [61] the plaintiff, or any one of the party on the toboggan, failed to exercise ordinary care which proximately contributed to the plaintiff’s injuries.” This instruction clearly indicates that question 3 related to the conduct of the party at and immediately preceding the occurrence of the accident and not to the general conduct of the parties riding through the park upon the toboggan attached to the automobile. We find nothing objectionable in this instruction. Plaintiff further seeks to sustain the order on the ground that the verdict was perverse. There is nothing in the record to indicate that the trial court set the verdict aside upon that ground. While a much larger finding of damages than that made by the jury could have been sustained under the evidence, we see no evidence of perversity. The case was fairly tried and there was no prejudicial error. The defendant should have had judgment upon the verdict. By the Court. — The order appealed from is reversed, with directions to grant defendant’s motion for judgment.