213 Wis. 78 | Wis. | 1933
Defendant contends that upon the undisputed evidence the infant plaintiff was guilty of contributory negligence as a matter of law, with respect to maintaining a proper lookout. This requires a consideration of the facts of the collision.
The collision occurred at the intersection of Burleigh and Twenty-seventh streets. Burleigh street runs east and west ; Twenty-seventh street runs north and south. Twenty-seventh street has two sets of car tracks, and is forty feet wide. The intersection has sufficient traffic to require the use of traffic lights. Just prior to the accident plaintiff had been sent by his parents to mail a letter. The mail box was located at the northeast corner of the intersection. Since the plaintiff’s home was on the west side of Twenty-seventh street, this required him to cross Twenty-seventh street from the northwest to the northeast corner. According to plaintiff’s testimony, he started across, with the green light favoring him and stopping traffic on Twenty-seventh street.
Defendant claims that the evidence shows plaintiff to have been an infant of normal intelligence and capable of being guilty of negligence as a matter of law, and-that plaintiff clearly failed to keep a proper lookout. Defendant relies upon Brickell v. Trecker, 176 Wis. 557, 186 N. W. 593, where it is held that “pedestrians cannot heedlessly cross busy city streets, where automobiles and other traffic pass to and fro, without taking the least precaution to discover and avoid approaching vehicles.” And upon Mertens v. Lake Shore Y. C. & T. Co. 195 Wis. 646, 218 N. W. 85, in
Defendant’s contentions upon the facts may be tersely stated. Plaintiff looked to the south before leaving the curb and did not see defendant’s truck, although it was a clear day, there was nothing to obstruct his vision, and defendant’s truck was not going at such a speed as to be out of sight at the time. Plaintiff made an inadequate observation after arriving at the center of the street because at that time the truck must have been within a very short distance of him. Defendant claims that upon these facts-the foregoing cases compel the conclusion that plaintiff was negligent as a matter of law.
The case of Edwards v. Kohn, 207 Wis. 381, 241 N. W. 331, is claimed by defendant to be distinguishable upon the ground that there the jury might have reached the conclusion that the speed of the defendant’s car was so great as to put him out of the line of vision at the time when plaintiff looked, and McDonald v. Wickstrand, 206 Wis. 58, 238 N. W. 820, is distinguished upon the ground that there was evidence there to sustain the jury’s finding that defendant was not close enough at the time of plaintiff’s last observation to warrant the plaintiff stopping if he had seen defendant’s automobile. Raabe v. Brzoskowski, 204 Wis. 319, 236 N. W. 133, is distinguished upon the ground that there the plaintiff saw the vehicle at a point which in her opinion permitted her to make the crossing safely.
It is plaintiff’s contention that the jury had a right to believe plaintiff when he testified that he entered the intersection with the lights in his favor, and that the jury fur
There is evidence that plaintiff made an observation before entering the intersection, and another when he reached the center of Twenty-seventh street. Hence the question is whether, as a matter of law, these observations were inadequate in view of the fact that there was an unobstructed view south on Twenty-seventh street; that the truck was within 150 to 200 feet of the plaintiff at the time of his first observation, and steadily approaching him, and that in spite of the claimed observation plaintiff did not see the truck until immediately before it struck him. If this were an ordinary city intersection, there might be merit in the contention that plaintiff was guilty of negligence as a matter of law for failing to keep a proper lookout. In view of the fact, however, that traffic at this crossing was controlled by lights, and that plaintiff entered the intersection with the lights in his favor, he would not have the same obligation to make extended observation of the highway as would be the case if the traffic was not controlled by lights.
The fact that plaintiff, before leaving the curb, merely made such an observation as would indicate that the intersection itself was clear of traffic, would not establish his negligence as a matter of law. His obligation to make an
Defendant’s claim that the evidence does not sustain the jury’s finding that plaintiff had the right of way is based upon the contention that in several respects plaintiff’s testimony was contradictory, and that it was in conflict with that of a wholly disinterested witness. Plaintiff’s testimony is not contrary to the physical facts or against all the reasonable inferences. Such criticism as is made of it goes to its weight and not to its sufficiency. Nor does the fact that it conflicts with that of a disinterested witness dispose of it as a matter of law. It was a circumstance which the trial court was entitled to consider in passing upon motions for a new trial, but we cannot say that the trial court abused its discretion when it disregarded it and ordered judgment.
By the Court. — Judgments affirmed.