213 Wis. 121 | Wis. | 1933
A short time prior to September 9, 1931, the plaintiff learned through a mutual friend of hers and Nel
It should be noted here that numerous accidents had occurred at this particular place following the closing of the highway and the erection of the barrier. The barrier had been knocked down repeatedly by automobiles running into it. During the night before the accident herein the barrier was knocked down and the lantern placed thereon was broken. On September 9th the accident of the preceding night was reported to the company, and Shaefer, whose duty it was to attend to the light, was given a “bomb torch” to use at the barrier in question. Early in the evening of September 9th he lighted the bomb torch and placed it in- front of the barrier. When he lighted it it flared up for a distance of about two feet, then settled down and was apparently burning all right when he left it. It however burned for only a short time and then went out. About ten minutes before the accident here considered the barrier was knocked down by another car evidently being driven at a high rate of speed, so that when Nelson approached the intersection the barrier on the left half of the road was lying flat on the ground; the right half of the barrier sloped from the center of the road up to a height of about two feet.
The jury found that the company failed to exercise ordinary care (1) with respect to providing and maintaining a suitable and sufficient barrier, (2) with respect to providing and maintaining suitable warning signals and signs, (3) with respect to providing and maintaining, from sunset to sunrise, suitable and sufficient warning lights or torches, but acquitted it of any negligence with respect to the placing or allowing the angle-iron post or the wooden jack to be in the highway. The jury also found that each of such failures to exercise ordinary care was a cause of the plaintiff’s injuries, and that the company ought, in the exercise
The jury also found that Nelson, just prior to the accident, failed to exercise ordinary care not to increase the danger which the plaintiff assumed upon entering the automobile, with respect to 'the speed he was traveling, the lookout he was maintaining, and the management and control of his automobile; that each of such failures was.a cause of the accident and plaintiff’s injuries and that he ought, in the exercise of ordinary care, to have anticipated that an accident and injury might probably result.
The jury further found that the plaintiff did not fail to exercise ordinary care with respect to maintaining a proper lookout but did fail to exercise ordinary care with respect to protesting against the rate of speed at which the automobile was being driven; that such failure to protest contributed to cause the accident and that she ought to have foreseen, in the exercise of ordinary care, that an accident and injury to herself might probably follow. The jury also found that the plaintiff assumed the risk incident to riding in Nelson’s automobile. The jury assessed the damages sustained by the plaintiff and determined the percentages of negligence under the comparative negligence law.
The usual motions after verdict were made by the parties. The trial court changed the answers which found the plaintiff guilty of contributory negligence and that she assumed the risk of riding in Nelson’s automobile, from “Yes” to “No,” and upon the verdict as so changed ordered judgment in favor of the plaintiff and against both defendants for the amount of the damages found. Neither defendant assails the verdict as to the damages found. Nelson makes no contention in his brief with respect to the findings of the jury as to his failure to exercise ordinary care. His principal contentions are that the court erred in changing
As to Nelson’s second contention that the court erred in changing the answer which found that the plaintiff assumed the risk in riding in Nelson’s automobile, we think it is without merit. Nelson as the driver of the automobile owed
The company contends that the trial court should have granted its motion to change the answers of the jury which found it negligent in the several respects stated. The contention is very persuasive as to the findings of the jury with respect to (1) failure to provide and maintain a suitable and sufficient barrier, and (2) failure to provide and maintain suitable warning signs. The trial court was of the opinion that the finding of the jury as to the failure of the company to provide and maintain suitable lights at or near to the barrier from sunset to sunrise was supported by the evidence and that that finding, together with the other findings that such failure was a cause of the accident, etc.,
We think under all the facts and circumstances of this case the finding of the jury as to the company’s failure to exercise ordinary care with respect to providing and maintaining suitable lights is supported by the evidence. The defendant company knew that immediately to the east of the intersection was a straight seven-mile stretch of concrete; that the detour turn was an abrupt right-angle turn; that numerous accidents had occurred at that barrier during the two months immediately preceding this accident and that it had been warned both by Shaefer and his mother as to the ineffectiveness of a single lantern or light to prevent accidents. We think these undisputed facts gave rise to a jury question as to whether the company, under all of the circumstances, exercised ordinary care in respect to providing and maintaining suitable lights at the barrier in question. In a situation such as is revealed by the evidence in this case, a contractor ought not to be permitted to assert that he had discharged his duty to the traveling public as a matter of law when he has placed a single light or lantern at a barrier constructed at such a dangerous place. A single torch or lantern may go out or become broken. A single light obviously is not as effective as several lights. With several lights there is little likelihood that all of them will be destroyed or extinguished.
By the Court. — Judgment affirmed.