(176 N.W.)

LUETHE v. SCHMIDT-GAERTNER CO. (Supreme Court of Wisconsin. Feb. 10, 1920.)

1. EVIDENCE 555- SKID MARKS OF TRUCK WHEELS AS Ground for exPERT OPINION OF

SPEED WHEN BRAKES WERE APPLIED.

In a personal injury action, where plaintiff was struck by a motortruck, evidence that there were skid marks of the truck wheels on the street for a distance equal to the street crossing and other evidence showing long skid marks furnished proper grounds for an expert to give his opinion as to the truck's speed when the brakes were applied.

2. APPEAL AND ERROR 1062(1)-CORRECTION OF ERROR IN INSTRUCTION SUBMITTING ISSUE PREVENTED JURY'S BEING MISLED.

Where plaintiff crossed in front of a street car which she was intending to board, and was

ing the car, and as to whether the car had come to a full stop before she crossed in front of it, and whether the truck driver had opportunity to observe that the car was slowing down, and as to the speed of the truck, the question of contributory negligence was for the jury, and plaintiff may not be held guilty thereof as a matter of law.

Eschweiler, J., dissenting.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by Florence A. Luethe against the Schmidt-Gaertner Company in the civil court of Milwaukee county for personal injuries. Judgment for plaintiff was reversed in the circuit court, and the complaint dismissed, and the plaintiff appeals. Reversed, and cause remanded to circuit court, with direc

struck by defendant's automobile, proceeding in tions to affirm judgment of the civil court.

the same direction as the street car, submission of a question whether defendant's speed was more than 10 miles per hour was not error misleading the jury on the matter of the driver exercising ordinary care, where through confusion the court directed the jury they need not answer the question of speed in event of answering that the driver was negligent, which the court corrected on his attention being called thereto, informing the jury that, if they answered that the driver exercised ordi

nary care, no answer would be required to the question of speed.

3. MUNICIPAL CORPORATIONS 706(5)—NEGLIGENCE OF MOTORTRUCK DRIVER QUESTION

FOR JURY.

The plaintiff brought this action in the civil court for Milwaukee county to recover damages for a personal injury. The case was tried to the court and a jury. The civil court awarded judgment in plaintiff's favor on the verdict of the jury. The circuit court, upon appeal, reversed the judgment of the civil court and awarded judgment dismissing plaintiff's complaint with costs.

The complaint alleges that on May 31, 1916, while driving a motortruck along Murray avenue in the city of Milwaukee, the defendant ran into and upon plaintiff on the sidewalk crossing of Murray avenue, near the southwest corner where it intersects Belleview place; that the collision was proximately caused by the negligent operation of defendant's motortruck, which was being operated at a high rate of speed and greater than was reasonably safe in view of the traffic under the circumstances; that defendant did not keep a proper lookout for pedestrians using the street at the point of collision; and that defendant violated the Milwaukee city ordinance regulating the manner MATTERS of operating automobiles when they undertake to pass street cars discharging or taking on passengers.

In view of St. 1917, § 1636-49, requiring that no automobile shall be operated recklessly or at a speed greater than reasonable and proper, which shall be so reduced at any street or crossroad as to avoid danger or accident, evidence in an action for personal injuries received from being struck by an automobile held to present a question for the jury as to defendant driver's negligence, and not to warrant holding the driver not guilty of want of ordinary care, as a matter of law.

4. APPEAL AND ERROR 843(2)
RENDERED IMMATERIAL WILL NOT BE CONSID-
ERED ON APPEAL.

In an action for injuries received by being struck by defendant's motortruck, where the jury found that the driver failed to exercise ordinary care, and such was the proximate cause of plaintiff's injuries, questions as to the

truck's being driven at an excessive speed,
and that such speed was the proximate cause of
the injury, became immaterial and superfluous
in establishing actionable negligence.
5. MUNICIPAL CORPORATIONS

706(7)-CON

TRIBUTORY NEGLIGENCE OF PEDESTRIAN
QUESTION FOR JURY.

In an action for injuries caused by plaintiff's being struck by defendant's motortruck after crossing in front of a street car she intended to board, where the evidence was conflicting as to her course traveled after observ

The defendant answered, denying that it was guilty of negligence as charged in the complaint, and alleged that the injuries plaintiff is alleged to have suffered were proxi mately caused by her own negligence.

The case was submitted to the jury upon a special verdict, who found: (1) That the plaintiff was injured by being struck by defendant's motortruck at the time alleged at the corner of Murray avenue and Belleview place in the city of Milwaukee; (2) that the driver of the truck failed to exercise ordinary care at the time plaintiff was struck; (3) that such failure to exercise ordinary care was the proximate cause of the plaintiff's injuries; (4) that defendant's truck was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

driven at a rate of speed in excess of 10 guilty of contributory negligence as a matmiles per hour as it passed the street car atter of law. This is an appeal from the judgthe time in question; (5) that such excessive ment of the circuit court. speed was the proximate cause of plaintiff's injuries; (6) that plaintiff at the time of accident was exercising ordinary care; (7) damages.

(176 N.W.)

"No person shall operate *

their duties in considering their answer upon We are of the opinion that it cannot be this issue in the case. The duty of defend-held as a matter of law that plaintiff was ant in operating its automobile truck on the guilty of negligence in her use of the street street is defined by the statutes: as a pedestrian at the place she testifies she crossed it in order to reach the point to board the street car. The facts and circumstances disclosing her conduct and acts in accomplishing her purpose are of such a nature as to permit of different inferences as to whether or not she was guilty of any want of ordinary care that contributed to this accident. The evidence on this question presents, in our opinion, a jury issue, and the trial court properly submitted this issue to a jury for determination.

any automobile recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways, and the general and usual rules of the road, or so as to endanger the life or limb of any person: Provided * *that at the intersection of any street or crossroad * the speed shall be reduced to such a rate as will tend to avoid danger of accident." St. 1917,

1636-49.

*

It follows that the circuit court erred in reversing the judgment of the civil court.

The judgment appealed from is reversed, and the cause is remanded to the circuit court, with direction to affirm the judgment of the civil court.

WINSLOW, C. J., and KERWIN, J., took no part.

It is manifest, under the facts and circumstances adduced in evidence, that question 2 covers the inquiry as to whether or not the defendant negligently omitted to perform this duty towards plaintiff. We are persuaded that the evidence on this issue of the case presents a question for determination by a jury, and that the circuit court erred in setting aside the answer to question 2 and in holding as a matter of law that defendant's driver was not guilty of a want of ordinary care. In the light of this finding and the third finding of the jury that such failure of the driver to exercise ordinary care was the proximate cause of plaintiff's injuries, questions 4 and 5 of the special verdict are immaterial and superfluous to establish defendant's liability for actionable negligence. Fur-tory negligence as a matter of law by the ther consideration of questions 4 and 5 of the circuit court. verdict are not required. The verdict is complete and establishes actionable negligence aside from the inquiries in these two questions.

ESCHWEILER, J. (dissenting). The passing by the plaintiff in front of the moving street car and then into the zone of passing vehicles without looking for any vehicle that might be and in this instance was lawfully alongside the moving car, in my judgment, was properly declared to be contribu

GORDON v. WISCONSIN NAT. BANK.
(Supreme Court of Wisconsin. Feb. 10, 1920.)
NEGLIGENCE 136(27)-PERSON INJURED BY
FALLING ICE NOT NEGLIGENT AS MATTER OF
LAW IN DISREGARDING ROPE BARRIER.

one alighting from a car to pass alongside the car, by the man holding the rope, though he was killed by falling ice.

[5] The inquiry remains: Does the evidence sustain the finding of the jury that the plaintiff was not guilty of a want of ordinary care proximately contributing to the injuries? An examination of the evidence has convinced us that the trial court correctWhere a rope was stretched from a buildly held that the evidence sustains the jury ing from the roof of which ice was being reon this issue. The evidence is conflicting on moved to a point near the street car tracks, the points as to the course the plaintiff trav-it was not negligence as a matter of law for eled after she observed the street car coming from the north and which she undertook to board at the southwest corner of Murray avenue and Belleview crossing; how far to the north, if any, of the usual stopping place of the street it stopped on this occasion; whether or not it had come to a full stop before plaintiff crossed in front of it; whether or not the driver of the truck had an opportunity to observe that the car was slowing down to stop or had in fact stopped before he passed it; at what rate of speed he was driving immediately before and at the time of collision with plaintiff; and other points of fact involved in the inquiry as to plaintiff's failure to exercise ordinary care to avoid collision with defendant's motortruck on the occasion in question.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by Florence A. Gordon, administratrix, against the Wisconsin National Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

Personal injury. On the morning of the 11th of February, 1918, the deceased, husband of plaintiff, was on a street car traveling south on East Water street in the city of Milwaukee. The car stopped on Water street, north of the intersection of Wisconsin street. The deceased alighted and passed south alongside the car, and by a man

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 176 N.W.-5

holding the end of a rope reaching from near the car to the Pabst building, and while he was in the street, next to the car, was hit on the head by a piece of falling ice and instantly killed. The ice was loosened by employés of defendant in the course of removing it from the roof of the building.

The plaintiff brought this action, and from the judgment awarding her $10,000 damages and costs defendant appeals.

Burr J. Scott, of Milwaukee (Lawrence A. Olwell, of Milwaukee, of counsel), for appellant.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Appolonia Stahl against William Broeckert and others. From an order overruling a demurrer to plaintiff's complaint, defendant Broeckert appeals. Reversed and remanded, with directions.

Appeal from an order overruling a demurrer to the plaintiff's complaint. This action was brought by plaintiff against William Broeckert, Hugo J. Stahl, and Bertha Stahl to recover damages on account of fraud. The complaint alleges that the plaintiff is a

Carroll & Carroll, of Milwaukee, for re- widow, 65 years of age, of German descent, spondent.

and unable to read or write the English language; that the defendant William Broeckert is a notary public, versed in the drafting, execution, and acknowledgment of deeds, mortgages, and other legal documents; that prior to the 30th day of September, 1908, this plaintiff had agreed to purchase certain real estate from one Joseph H. Klein for $2,000. By the terms of the agreement plaintiff was to deliver to Klein a note for $1,000, her note for $850, secured by mortgage on the property, and the balance in cash; that on the 30th day of September, 1908, this plaintiff and said Klein and his wife met for the purpose of consummating the purchase of said premises; that the defendant William Broeckert was called to draft the necessary instruments; that said Broeckert knew that plaintiff was unfamiliar with the execution of legal documents, and that this plaintiff then and there relied upon the honesty and integrity of said defendant William Broeckert to properly make and prepare the necessary instruments; "that at that time and place the said defendant William Broeckert, being then and there, as this plaintiff is informed and verily believes, in league and collusion with the defendants Hugo J. Stahl and Bertha Stahl, and for the purpose of deWINSLOW, C. J., and KERWIN, J., took frauding this plaintiff, and for their own gain

ROSENBERRY, J. (after stating the facts as above). The sole contention made on the appeal is that the deceased was guilty of contributory negligence as a matter of law. This clear-cut issue has been fully and ably argued and we have given the matter the attention that the importance of the case demands. The contention of the defendant is briefly that in passing by the man who held the rope, the deceased was warned of the fact that he was in a zone of danger, and that his failure to accept the warning and his entrance into the zone of danger constitute contributory negligence as a matter of law. While the argument is persuasive, there is no circumstance or combination of circumstances which are conclusive upon this question. The evidence no doubt would sustain a finding of the jury either way. Reasonable men might well come to different conclusions upon the facts and circumstances appearing in the evidence; it is therefore a jury question, and the trial court rightly so held.

Judgment affirmed.

no part.

STAHL v. BROECKERT.

(Supreme Court of Wisconsin. Feb. 10, 1920.) LIMITATION OF ACTIONS

100(5)-CAUSE OF ACTION FOR DAMAGES FOR FRAUD ACCRUES ON PERPETRATION, AND NOT ON DISCOVERY, OF

FRAUD.

Action for a money judgment for damages from defendant's fraud in procuring plaintiff to sign note and mortgage being purely a legal action, the cause of action accrues when the fraud was perpetrated, and not when it was discovered by plaintiff, and St. 1917, § 4222, subd. 7, providing that a cause of action for relief on the ground of fraud in a case cognizable in equity does not accrue until discovery of the fraud, does not apply.

and benefit, willfully and fraudulently procured the signature of this plaintiff to a certain note and mortgage for $800 purporting to be payable to one Peter Meinert; that, as this plaintiff is informed and verily believes, the said Peter Meinert had no knowledge of the fraudulent procurement of the execution and signing of the note and mortgage set forth herein, and, as this plaintiff is informed and verily believes, paid to the said defendants the sum of $800 as consideration for such note and mortgage in good faith;" that plaintiff did not intend to execute said note and mortgage to said Peter Meinert, and that her signature was attached thereto without her knowledge, without knowledge on her part as to the nature and contents thereof, and through the fraudulent machinations of said defendant William Broeckert; that by reason of the fraudulent acts of said defendant the said note and mortgage became a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(176 N.W.)

(Supreme Court of Wisconsin. Feb. 10, 1920.) 1. STREET RAILROADS 114(16)

FINDING THAT PEDESTRIAN STRUCK BY CAR FAILED TO LOOK JUSTIFIED BY EVIDENCE.

valid and outstanding incumbrance upon the| title of this plaintiff to the premises therein PINZ v. MILWAUKEE ELECTRIC RY. & described; and that in order to remove such LIGHT CO. incumbrance plaintiff was compelled to and did on the 27th day of January, 1913, cause to be paid to the said Peter Meinert the sum of $781.14 to procure a release and discharge of said incumbrance. The prayer is for judgment against the said defendants for the sum of $900, together with the costs of the action. To this complaint the defendant William Broeckert demurred, on the ground "that it appears upon the face of said complaint that said action was not commenced within the time limited by law; that is, by section 4222 of the Wisconsin Statutes." The court over-2. ruled the demurrer, and the defendant Broeckert appeals from such order.

Hougen & Brady, of Manitowoc, for appellant.

In an action for injuries to a woman 86 years old, who was struck when crossing a street ahead of a street car running at an unreasonable speed, testimony by an eyewitness held to support a special finding that plaintiff did not look before entering the danger zone, as against a contention that it was contrary to the established physical facts.

STREET RAILROADS 118(14)

INSTRUC

TION ON CONTRIBUTORY NEGLIGENCE OF AGED
PEDESTRIAN PROPERLY REFUSED AS INCOR-
RECTLY STATING LAW APPLICABLE.

Where there was evidence of want of care Lorenz & Lorenz, of Milwaukee, for re- who attempted to cross ahead of a street car, on the part of plaintiff, a woman 86 years old, spondent.

3. NEGLIGENCE 122(5) PRESUMPTION OF
CARE BY PERSON INJURED DOES NOT OBTAIN
WHERE THERE IS CREDIBLE EVIDENCE ΤΟ
CONTRARY.

and was struck, an instruction that plaintiff was presumed to have looked and listened before enOWEN, J. (after stating the facts as tering the danger zone, that she conducted above). It is conceded that this action is herself as the greater mass of women of her age barred by section 4222, Stats., unless it was and her infirmities would have conducted thembrought within six years after the cause of selves under the same circumstances, and that action accrued. The question is: When did she was presumed to exercise the care that wothe cause of action accrue? Plaintiff con- cised under the same circumstances, was propmen of her age and infirmities would have exertends that this action is controlled by sub-erly refused, as not being a correct statement division 7 of section 4222, which in effect pro- of the law applicable to the case. vides that a cause of action for relief on the ground of fraud in a case which was, on and before the 28th day of February, 1857, cognizable solely by the court of chancery, is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. The complaint alleges that the facts constituting the fraud were not known to plaintiff until on or about the month of July, 1912, and if said subdivision 7 is controlling the action was brought before it was barred by the statute. It is well settled that said subdivision 7 relates only to equitable actions and does not affect purely legal actions. This was made so plain in Pietsch v. Milbrath, 123 Wis. 647, 101 N. W. 388, 102 N. W. 342, 68 L. R. A. 945, 107 Am. St. Rep. 1017, that nothing further need be

said.

A consideration of the complaint herein discloses that this is an unadulterated

legal action, brought for the specific purpose of recovering a money judgment for damages occasioned by the fraud alleged. Such being its nature, the cause of action accrued when the fraud was perpetrated, and not when it was discovered by plaintiff, and the statute of limitations had run thereon long before this action was commenced. The demurrer should have been sustained.

Order reversed, and cause remanded, with directions to sustain the demurrer to the plaintiff's complaint.

In the absence of all evidence, a person in

jured is presumed to have been in the exercise of ordinary care, but such presumption does not obtain where there is credible evidence to the contrary.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Mary Pinz, by guardian ad litem, against the Milwaukee Electric Railway & Light Company, for personal injuries. Judgment for defendant on the verdict was affirmed on appeal to the circuit court, and plaintiff appeals. Affirmed.

Personal injury. The plaintiff, a woman street in the city of Milwaukee ahead of an 86 years of age, attempted to cross Vliet approaching street car. She was struck, injured, and brought this action in the civil court of Milwaukee county to recover damages. The jury found that the street car was being run at a dangerous and unreasonable rate of speed; that the motorman was guilty of the want of ordinary care in the operation of his car; that the operation of the car at an unreasonable rate of speed, and the want of ordinary care on the part of the motorman, was the proximate cause

WINSLOW, C. J., and KERWIN, J., took of the injury; that the plaintiff was not no part.

guilty of contributory negligence; and that

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