Before DUFFY, Chief Judge, and MAJOR and FINNEGAN, Circuit Judges.
This is an appeal from a judgment in favor of plaintiffs, rendered after a jury trial, based upon claims for damages growing out of a collision between an automobile driven by plaintiffs' decedent, David Huse, and a tractor and semi-trailer unit owned by defendant and driven by its employee, Roy Walther. Jurisdiction is based upon diversity of citizenship.
The collision occurred August 9, 1953, about 5:30 A.M., on a clear morning, about four miles south of Sauk City, Wisconsin, on U.S. Highway 12. The paved portion of the highway was blacktop, twenty-two feet in width on which was indicated a center line. On either side of the pavement were freshly described as being from three to six feet in width. At the point where the vehicles collided the highway is quite level and runs in a northerly and southerly direction. There is a straight stretch of highway for a distance of from 300 to 500 feet both north and south of the point of collision. At the northern end of this straight stretch the highway curves to the northeast, and on the south end of the straight stretch the highway curves to the southeast.
The issues were submitted to the jury upon a special verdict. The jury found that neither defendant's employee, Walther, nor David Huse were negligent in the operation of their motor vehicles with respect to management and control. However, the jury found that both Walther and David Huse were negligent in respect to the operation of their motor vehicles as to the position of such vehicles on the highway, and that such negligence was a cause of the accident. Wisconsin has a comparative negligence statute and the jury apportioned the negligence as follows: to Roy Walther, 70%; to David Huse, 30%.
Defendant made motions for a directed verdict and for judgment notwithstanding the verdict which motions were denied. Appellant alleges error in such rulings. Appellant also asserts that the giving of certain instructions was error; that there was no support for the jury's award to plaintiffs of pecuniary loss caused by the death of their son, and that the Court erred in permitting, after the jury was sworn, the substitution of Albert Huse, for William Huse, as a party plaintiff.
Defendant's tractor and trailer weighed 56,000 pounds and the trailer was 35 feet in length. At its widest point the tractor was eight feet in width. Two saddle tanks carrying fuel for the operation of the tractor were located immediately to the rear of the tractor seat, and extended sidewise to a point approximately in line with the sides of the tractor cab. Walther testified that his speed was 45 miles per hour or perhaps a few miles faster. He estimated the speed of the Huse automobile at 55 or 60 miles per hour. There were two surviving eye witnesses to the collision, one being the truck driver, Walther, and the other a George Johnson who was driving an automobile in a northerly direction following defendant's truck.
The collision occurred in broad daylight. The sun was shining. Walther testified that when the vehicles were approaching, 300 to 400 feet apart, the Huse automobile swung to the east and continued toward him in Walther's lane of travel; that he blew several blasts on his air horn, and at the last moment when he saw a collision was imminent, he slammed on his brakes and turned his tractor sharply to the left, and that the vehicles then collided. He testified that at the moment of impact he was on his own side (east side) of the highway. He described the impact as a head-on collision.
Johnson testified he was driving about 300 feet behind defendant's truck; that he saw the Huse car come around the curve and that it was then straddling the center line; that when the truck and automobile got quite close each turned toward the west side of the highway. He testified he did not know whether the collision occurred east or west of the center line of the highway because of a cloud of dust. However, he admitted that in another court, in other litigation involving the same collision, he testified the impact was on the west half of the highway.
Traffic officers arrived a short period after the collision. Numerous photographs were taken. Officer Maves made measurements of and observed certain physical facts and made a drawing as a result of these measurements and observations. Debris and a large spot of oil were found in the west traffic lane. A tire mark led from the right rear wheel of the trailer back to the east half of the northbound lane on the highway. The southernmost end of this tire mark was 5 feet 8 inches from the east edge of the east lane of the highway. The Huse automobile was completely demolished and came to a rest on the shoulder on the west side of the highway. The tractor crossed the west lane at an angle, went through a ditch and into the adjoining field on the west side of the highway. The left end of the saddle tank was torn off, the left front of the tractor was dented, and part of the left side of the radiator grille was damaged.
After the jury had been sworn and counsel had made their opening statements, plaintiffs moved to amend their pleadings to change the name of one of the plaintiffs from William Huse to Albert Huse. Over the objection of the defendant, the District Court allowed the amendment. Defendant urges this was error because by such procedure he was deprived of the opportunity on the voir dire to ask the jury whether they knew Albert Huse. Defendant also claims an adverse effect to its interest because Albert Huse was an insane person.
In the complaint it was alleged that plaintiffs, Maurine Huse and William Huse, were the parents and next of kin of David Huse, deceased. It is apparent the attorney preparing the summons and complaint inadvertently named David Huse's father as William instead of Albert. True it is that Albert was a patient in a mental institution, but he was in that condition prior to the time of the collision and the death of his son. Plaintiffs' motion to amend included the naming of David's mother, Maurine Huse, as general guardian for Albert Huse, incompetent. Under § 331.04(2) Wis.Stat., Albert Huse had a joint interest with his wife, Maurine, in any recovery of damages by reason of the alleged wrongful death of his son. Represented by his guardian, Albert Huse was a proper party plaintiff to this suit. Defendant did not plead surprise nor move for a continuance.
In federal practice amendments are freely granted when justice so requires. There is no showing that defendant was prejudiced. We think defendant's claim of error in this respect is entirely without merit.
The jury awarded to the parents of David Huse $1645 for the pecuniary loss which they sustained by reason of his death. It is the claim of defendant that no proof of any pecuniary loss to David's parents was made. The evidence disclosed that while the father was confined to a mental institution, the mother was attempting to operate the farm. After David and his brother entered the Armed Services of this country, the mother worked part time as a waitress in addition to her farm duties. At the time of his death David was a minor and his parents were entitled to his earnings. For sometime before his death David and other children had been helping to build an addition to the home. There was evidence to show David helped on the farm prior to leaving for service, and that he was able to obtain leaves from his nearby army station about every three weeks during which period he returned home and helped with the work on the farm. ...