| Wis. | Apr 5, 1911
The jury acquitted the plaintiff of contributory negligence and determined all other controverted issues of fact in his favor. The court held that the plaintiff was •guilty of contributory negligence as a matter of law, and amended the verdict to conform to its views in this regard and entered judgment dismissing the complaint. The sole question before this court is: Does the evidence offered support the finding of the jury ? In answering this question we must, where there is a conflict, tahe that evidence to be true which is most favorable to the plaintiff. Such evidence tended to show that at the time of the accident the automobile was equipped with two headlights and two sidelights, all ■of which were burning, and which gave an average light that would enable the driver to plainly see objects two hundred feet in front of him and from five to seven feet on either side of the traveled track; that the plaintiff was an expert chauffeur; that the highway was a main traveled road; that the driver •of the horse and buggy had stopped on the west side of the road, apparently to allow the plaintiff to pass, and had done nothing to warn the plaintiff that he could not safely do so; that the plaintiff had slowed his machine down so that it was simply crawling as he attempted to pass the horse and buggy; that a thick matting of grass and weeds had grown up on the side of the highway, which had been cut during the pre■ceding June; that the main traveled highway was dusty and •the dust had settled upon the grass and weeds on the side of
The plaintiff testified that he started to turn out for the horse and buggy when he was fifteen or twenty feet from them and that at that distance “you can tell that weeds covered with dust are not part of the traveled track.” The crucial point under the testimony is, Should it be said as a matter of law that the plaintiff was negligent in not stopping his-machine and making an examination of the highway before attempting to pass the horse and buggy ? Is it clear that an ordinarily careful and prudent man, situated as the plaintiff was, would do so ? Is there any reason to doubt that he would do so ? Could reasonable minds reach a different conclusion upon the question? If so, the question of contributory negligence was properly submitted to the jury and its-finding is conclusive.
It does not seem to us that it is at all clear that ordinarily prudent men would not usually and customarily do as the plaintiff did, under like circumstances, and act upon appearances instead of stopping and examining the highway. The jury could well have found that the ditch could not otherwise have been discovered owing to the weeds and grass, and we think the trial court erred in setting aside the finding of the jury on contributory negligence. It follows that the judgment must be reversed.
The defendant made a motion for a new trial on various grounds. The trial court did not find it necessary to pass
Ch. 100, Laws of 1901, provides that, if a motion for a neiv trial made under sec. 2878, Stats. (1898), is not decided at the term at which the trial is had, “it shall he taken as •overruled, and an exception to such constructive denial of the same shall be allowed in the bill of exceptions.” This statute has recently been construed in Kurath v. Gove A. Co. 144 Wis. 480, 129 N. W. 619. It may well be considered •doubtful whether under the statute this court has the right to remand the cause with, directions to the trial court to enter judgment-on the verdict as returned or grant a new trial in the exercise of its discretion. It is quite apparent that the trial court was dissatisfied with the verdict, and that in the •exercise of its discretion under sec. 2878, Stats. (1898), it would have set it aside and granted a new trial had it not modified the verdict and awarded judgment to the defendant. The court evidently was of the opinion that the evidence was insufficient to support the third finding of the jury, else it would not have been set aside. We therefore conclude that under the .power vested in the court by sec. 3071, Stats. (1898), the judgment should be reversed and the cause remanded for a new trial instead of for judgment on the verdict.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.