185 Wis. 11 | Wis. | 1924
We will first treat the question of the negligence of the defendant town. For years a large number of automobiles had been operated over this highway by persons visiting in that locality, by the urban population living in the vicinity thereof, and by tourists traveling to and from the summer resorts located upon inland lakes in the proximity of the highway. All of these facts, together with the standard of road construction and the topography of the locality, must be taken into consideration in deter
It is further argued that the plaintiff failed to exercise ordinary care which proximately contributed to the injury. Plaintiff was a passenger in the car operated by the defendant Slattery. Pie did not operate the car or participate in its operation, nor did he give any directions. Just before entering upon the crossing his attention was directed to Slattery’s efforts to change the gears. True, both Slattery and the plaintiff were familiar with the crossing, having lived in that locality for a long period of time and having passed over it on numerous occasions. The car, however, was traveling in second, at a conceded rate of speed not exceeding five miles an hour. The care required of a passenger under these circumstances is the care required of the great mass of mankind similarly transported,' under the same or similar circumstances. While it is the duty of a passenger where he observes a car being operated at an excessive or dangerous rate of speed, or where an imminent
We next come to the question of the alleged contributory negligence of the defendant Slattery, which the defendant town claims should be found as a matter of law. Upon an examination of the car subsequent to the accident it was ascertained that the difficulty in the shift of the gears was caused by a broken dog in the gear-shift apparatus. This was not known to Slattery or the plaintiff at or prior to the happening of the accident. Both the operator of the car and the plaintiff had considerable experience in the operation of Overland cars. The gear shift constitutes a very delicate and important mechanism in automobiles, and,one towards which the operator of the car is not only required to, but as a rule does, devote considerable of his attention. It is well known to operators of automobiles that long distances can only be traveled speedily when the machine is operated in high, and the operation of the machine in high gear results in smooth action of the mechanical devices and is attended- with little noise; and furthermore, while the power is greater in second or in first, the speed is. accelerated in high and less gas is consumed. It would therefore appear to us that under all the facts and circumstances in the case the alleged negligence of the defendant Slattery presented a proper issue for the jury; and the jury having in its special verdict acquitted him of negligence, such finding must stand. Druska v. Western Wis. Tel. Co. 177 Wis. 621. 189 N. W. 152.
“But there was here no causal connection whatever between the giving way of the shifting device and the car’s going off the road. If the steering mechanism had given way or the right wheel of the car broken down, so that the giving way of the part had itself headed the car down the bank or turned it top near to the edge of the road, there would have perhaps been such causal relation as would have afforded basis for argument that this established proximate causation as a matter of law. But the driver had effected the shifting of gears. The car was operating in second speed when it left the road. The physical fact of the breaking off of two of the posts bears out the driver’s statement in this regard. The testimony of the witnesses clearly establishes that the car was going so slowly that its momentum was insufficient to break off the posts without the driving force of the car in second gear. The thing that precipitated the car down the bank was not the breaking of the shifting device, but either the negligence of the driver in failing to keep on the road, or the condition of the road, or the action of the two concurring. The broken gear shift was not at the time operating at all.”
As to whether or not negligence on the part of the operator constituted an intervening cause we need not further consider, as the jury acquitted the operator of contributory negligence. There was thus established, first, the negligence of the defendant town and the fact that such negligence was a proximate cause, and second, that both the plaintiff and the operator of the car were free from negligence. There was thus no intervening cause such as is referred to in McFarlane v. Sullivan, 99 Wis. 361, 74 N.
A motion was also made by the defendant town for a new trial upon the grounds of newly-discovered evidence, such motion being based upon affidavits. The trial court in its opinion held that if matters set forth in such affidavits had been presented upon the trial a different result might have been achieved. From the affidavits presented by the town it would appear that both the plaintiff and the defendant Slattery, at and prior to the time of the accident, were under the influence of liquor. It appears, however, •that the defendant town was in possession of sufficient facts to require it to make due proper inquiry with respect to the alleged intoxication of both the plaintiff and the defendant Slattery, but that no' effort was made in that behalf and no diligence was shown to establish the fact; and under these circumstances the learned trial judge overruled the motion of the defendant town. The application for a new trial on the ground of newly-discovered evidence is addressed to the sound discretion of the court. Walata v. State, 180 Wis. 646, 193 N. W. 61. The court having exercised its discretion, under all the facts and circumstances appearing in tire record, we cannot say that the trial court abused its discretion. Counsel for the defendant town argues a number of exceptions as a basis for a new trial, which we have carefully considered, but we are satisfied that no prejudicial error appears in the record.
The judgment of the lower court must therefore be affirmed.
By the Court. — Judgment affirmed.