273 Wis. 422 | Wis. | 1956
The instructions to the jury are of particular concern upon. this appeal. The portions specifically challenged by appellant as erroneous bear a direct relation to the responsibility resting upon the driver of respondent’s car. The _ appellant’s driver was adjudged to have contributed the greater portion of the total negligence causing the collision. The jury, by the answers in the special verdict, found his proportion to be 80 per cent and respondent’s 20 per cent. The evidence clearly shows that each driver, as he approached the point of collision, invaded the other’s lane of travel. The appellant insists that the respondent’s negligence equaled or exceeded Kaul’s and objects to certain instructions referring to the responsibility resting upon a driver to keep from operating his- car “on the left side of the highway upon any part of a grade ... in the highway where the operator’s view along said highway is obstructed for such a distance as. to create a hazard in the event another vehicle might approach from the opposite direction.” That, of course, is the law, and fixes the standard, but the court instructed the jury that a motorist may drive in the center of
In addition to the errors just outlined, the jury was told that “If one suddenly finds himself in a place of danger and is required to act without time to consider the best means that may be adopted to avoid the impending danger, he is not chargeable with negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself has been brought about in whole or in part by his own negligence.” It was erroneous to submit the case so as to
The jury found that the respondent was causally negligent as to giving the driver of the Kaul car one half of the main portion of the highway and apportioned the negligence as described in the statement of facts. On motion after verdict the trial court sustained the findings of the jury and entered the judgment appealed from.
Reviewing the whole charge, it is considered that the challenged portions result in confusion and such a lack in certainty and completeness as to be misunderstood and therefore prejudicial and misleading because capable of conveying to the minds of the jurors that the respondent did not fail to comply with the law governing the management and control of his car while proceeding up the hill, over which he could not see. He reached the crest when he had placed himself in a position for which he was responsible. Because of the errors indicated, there must be a new trial.
The judgment entered by the trial court must be reversed.
By the Court.- — -Judgment reversed. Cause remanded with directions to vacate the judgment entered and to grant defendant’s motion for a new trial.