201 Wis. 401 | Wis. | 1930
Viewed most favorably in support of plaintiff’s contentions and the jury’s verdict, the following facts were established by direct evidence or reasonable inference therefrom: On a dark night defendant’s driver, after traveling south on a country highway, turned over to his left side and parked the truck facing south at the left or east edge
The jury found (1) that the collision was the natural and probable result of the parking of the truck to the left of the
Defendant assigns as error that the court erred in not changing the jury’s findings so as to absolve the defendant from negligence, and 'find plaintiff’s son guilty of contributory negligence as a matter of law “in driving into a bridge in the face of blinding lights.”
The questions of whether there was negligence on the part of either driver are so close under the evidence in this case that it would have been within the province of the jury to answer otherwise than they did as to each finding. The truck driver did not violate sec. 85.02, Stats. 1927, by parking his truck on the left side of the highway. There was still left, as required by statute, a free and usable passageway of at least eighteen feet, so that vehicles going in opposite directions could pass without interference from any standing vehicle. His temporary parking, merely long enough to make a necessary business call and delivery, incidental to his lawful travel upon the highway, did not constitute an unreasonable use thereof if he did not thereby unreasonably interfere with others; and the use of the left-hand side of the road while making such reasonable use thereof, without any unreasonable interference with others, does not constitute negligence per se. Schacht v. Quick, 178 Wis. 330, 190 N. W. 87. Likewise, as the truck was at a standstill, and not being driven as plaintiff’s automobile approached, sec. 85.01, Stats., providing that whenever drivers of vehicles “shall meet on any highway” each shall seasonably drive his vehicle to the right of the middle of the traveled part of the highway, is inapplicable, and there was no violation thereof by defendant’s driver.
Likewise, in view of those circumstances, and the further fact that this is not a case in which the driver of plaintiff’s car continued approaching, without diminution in speed, when he had no adequate opportunity for observation because he was blinded by other headlights (Pietsch v. McCarthy, 159 Wis. 251, 150 N. W. 482); or by a cloud of dust or smoke (Johnson v. Prideaux, 176 Wis. 375, 187 N. W. 207; Fannin v. Minneapolis, St. P. & S. S. M. R. Co. 185 Wis. 30, 200 N. W. 651); or when his own lights were inadequate to light up ahead of him for a sufficient distance to enable him to see an obstruction in time to avoid a collision (Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629; Yahnke v. Lange, 168 Wis. 512, 170 N. W. 722; Yano v. Stott Briquet Co. 184 Wis. 492, 199 N. W. 48; Bergenthal v. Boynton A. L. Co. 179 Wis. 42, 190 N. W. 901; Kleist v. Cohodas, 195 Wis. 637, 219 N. W. 366); or when his lights were adequate and there were no circumstances which
In Hatch v. Daniels, 96 Vt. 89, 117 Atl. 105, 107, the court said in relation to a driver’s conduct under similar circumstances:
“The record discloses nothing to indicate that the plaintiff ought sooner to' have seen it. When he did see it he had plenty of time to avoid it. But he made the mistake of assuming that it was approaching him. Surely it cannot be said as matter of law that this was negligence. It was at least a question for the jury. Whether a prudent man would' or could reach this conclusion depended upon various circumstances. . . . The appearances caused by the reflection of the plaintiff’s lights on the vibrating glass of the defendant’s car; the improbability that a driver would stop his car in the dark on the wrong side of the road, — these were some of the circumstances to be considered in deciding whether the plaintiff lost his standing as a prudent man when he concluded that the defendant’s car was coming toward*407 him. . . . One thus driving an automobile along a public highway, who sees a car approaching on the wrong side of the road, has, at the outset, a right to assume that it will observe the law of the road.and seasonably move over to its right so as to pass without interference; and he may proceed on this assumption until he sees, or in the circumstances ought to see, that it is unwarranted. This is an application of the rule that ordinarily one may regulate his own conduct on the assumption that others will act reasonably and lawfully.”
In the case at bar the evidence admitted of the jury’s verdict, and the learned circuit judge has approved of that verdict in ordering judgment thereon.
There should also have been submitted to the jury the-issue of whether plaintiff’s son was negligent in not avoiding, a collision after he realized, or, in the exercise of ordinary care, should have appreciated, that the truck was not yielding the right of way to him. However, as neither party requested a finding on that issue, and inasmuch as the evidence admitted of a finding favorable to plaintiff, and the circuit judge has ordered judgment in plaintiff’s favor, that issue must now be deemed determined by the court in conformity with the judgment. Sec. 270.28, Stats.; Smith v. Reed, 141 Wis. 483, 124 N. W. 489; Gegare v. Fox River L. & L. Co. 152 Wis. 548, 140 N. W. 305; Dreblow v. Albert, 155 Wis. 189, 144 N. W. 254.
For the reasons stated, the assignments of error must be overruled and the judgment affirmed.
By the Co%irt. — Judgment affirmed.