160 Wis. 523 | Wis. | 1915
Upon the trial it was stipulated between counsel for the respective parties that the law of the road in Wau-sau required the defendant to travel on the north side of Stewart avenue and pass to the west side of Third avenue
It is earnestly urged that the court should say, in spite of the finding of the jury to the contrary, that the plaintiff was guilty of contributory negligence. This claim is based mainly upon the fact that the plaintiff said he first saw the defendant turning the corner when he, plaintiff, was about midway between the railroad crossing, which is about 134 feet south of Stewart avenue, and Stewart avenue, and therefore he had ample time and space in which to avoid defendant by turning to the right. It is quite apparent from the evidence that plaintiff was much nearer the comer when he first saw defendant turn. This is testified to by other witnesses who saw both parties and it is practically demonstrated by the physical facts. There is no dispute but .that the collision took place about thirty feet southwest of the catch-basin. If plaintiff was only midway between the railroad track and the corner when he first saw defendant, then he was considerably further from the point of collision than defendant was. Yet the evidence is quite conclusive that defendant traveled at a much greater rate of speed than did plaintiff. In any event the accident occurred within three seconds or less from the time they came within sight of each other, and the evidence shows that both made a sudden seesaw effort to avoid a collision, as is often done in an emergency. Considering that plaintiff was on the right side of the street and was not proceeding at a dangerous rate of speed, and that he had such a short time in which to avoid a collision, we cannot say the finding acquitting him of contributory negligence was wrong.
By the Court. — Judgment affirmed.