Corwin v. Salter

| Wis. | Dec 6, 1927

Vinje, C. J.

In refusing to set aside the verdict finding-plaintiff guilty of contributory negligence the trial court said:

“The plaintiff’s attorneys’ argument upon the question of her contributory negligence is quite persuasive and convinces me that if I were a juror I would vote in her favor upon that question. And this is principally upon the proposition that she had no reason to apprehend that the driver of the car would back his car back towards the direction of his wife. The jury after hearing the evidence and arguments of counsel found her guilty of negligence, but I do not believe that I would be justified in setting aside the jury’s finding.”

It appears that plaintiff turned to go back on the left side of the road, which gave her an opportunity to meet travel coming in her direction. It seems she walked a little to the left of the center of the highway. It also .appears that she looked back once when she was some fifteen to twenty feet from the car and saw it standing still. It further appears that she had walked only ten or fifteen feet more when she was struck by the car from behind. She says she was paying no particular attention to the car. and that .she did not hear it or see it until it struck her. She was traveling along the road in the place in,which it was safest for her to travel, and it is not inconceivable that even though she paid attention to where she was walking and to her surrounding situation that she might not hear the car coming backwards at a slow rate of speed over a graveled road. Her senses of hearing and seeing were normal, yet we cannot say she may not have heard the car before it struck her. It is inconceivable that she would not have looked around to see what was coming had she heard a noise from behind. The argument that she would have escaped injury had she been some distance to the left of where she was walking amounts to nothing. It simply says that if you were not at the place of accident you would not have been hurt. The question is, Did she have a right to be where she was, and if so was she guilty of any negligence in protecting herself where she had a right to be? We are unable to discover anything which she did that amounted to contributory negligence. She had no reason to anticipate that the defendant would back up without giving her timely notice thereof, because he knew she was proceeding back to Mrs. Salter and would be in the highway where he was backing up. The law on this subject is clearly stated in Seitz v. Ott, 174 Wis. 60, 182 N. W. 333.

We fully realize the conclusive effect of finding of facts by the jury, but where the facts are practically undisputed and the only proper legal inference to be drawn therefrom is contrary to the jury’s finding they must be set aside. We therefore reach the conclusion that the trial court erred in not setting aside the verdict finding plaintiff guilty of contributory negligence.

It is claimed in behalf of the respondents that in any event the judgment against the insurance company must be set aside because it appears without dispute that no notice was given in accordance with the terms of the policy, which required such notice to be given within five days. Sec. 85.25, Stats., makes the defendant company liable to the plaintiff. Sec. 204.29 provides that policies of insurance must contain provisions with reference to notice to the insurer and that no notice shall be limited to less than twenty days. In the present instance the notice provided for in the policy, being limited to five days, is contrary to the provisions of the statute and therefore inoperative and of no effect. The jury found that the defendant company was not prejudiced by reason of the delay. The officers so testified also. We see nothing in the case which contradicts this finding of the jury. It is true that the judge said in passing upon it that he would not set it aside, but that it was apparent, as a matter of law, that there was prejudice to the company. We fail to share this view of the situation. Every person who was present, being only three members of the defendant’s family and the plaintiff, were available as witnesses upon the trial, and it seems to us thát there was nothing which the defendant could have gained by an earlier inquiry into the matter. All the information lay in the breasts of the defendant, his wife, the little girl, and the plaintiff.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment against both defendants according to the verdict.