
    Rashke, Respondent, vs. Koberstein and another, Appellants.
    
      December 3, 1935
    
    January 7, 1936.
    
    For the appellants there was a brief by Sanborn, Blake & Aberg and Ernest H. Pett, all of Madison, and oral argument by Mr. Pett and Mr. W. J. P. Aberg.
    
    
      For the respondent there was a brief by Stephens, Slette-land, Sutherland, & Cannon of Madison, and oral argument by Robert J. Sutherland.
    
   Fowler, J.

This case was tried below and submitted here with that of August Ross against the same defendants, ante, p. 73, 264 N. W. 642. The facts in the two cases are the same, except that the plaintiff herein was sitting on the platform of the truck back of the driver’s seat and his injuries were different from those of Ross. The findings of the jury were the same except as to damages and that the plaintiff herein was found not negligent. The only error assigned is that the special verdict submitted was not in proper form. As the plaintiff was found not guilty of contributory negligence, the comparative negligence statute, sec. 331.045, Stats., does not-apply.. Manifestly, no harm resulted to appellants for including in the verdict a question as to comparative negligence which the jury were not to answer unless they first found the plaintiff guilty of contributory negligence, and which they did not answer.

By the Court. — The judgment of the circuit court is affirmed.  